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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


Digitized  by  the  Internet  Archive 

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A     COiVlMKN  i  Al^Y 


OK   THE 


INTERPRETATION  OF  STATUTES, 


G.  A.  ENOUGH,  Esq., 

AUTHOR  OF  "the   LAW  OF  BUILDING   ASSOCIATIONS,"   GTO 


FOUNDED  ON  THE  TREATISE  OF 

Sir  peter  BENSON  MAXWELL. 

Late  Chief  Justice  of  the  Straits  Settlements. 


JERSEY  CITY,  N.  J. : 
Frederick  D.  Linn  &  Company. 

1888. 


Kmered  acoordiiiK  to  Act  of  Congress,  in  the  year  1»«.  by 

FREDERICK  D.  LINN  &  Co  . 
ill  the  office  of  the  Librarian  of  Congress,  at  Washington. 


PREFACE. 


Since  its  first  publication  in  1875,  the  treatise  of  Judge  Max- 
well "  On  the  Interpretation  of  Statutes "  has  deservedly  taken 
high  rank  in  England  among  the  acknowledged  authorities  upon 
this  branch  of  the  law,  and  has  made  its  way  to  judicial  recogni- 
tion in  this  country.  Its  simplicity  and  practical  directness  in  the 
treatment  of  an  intricate  and  seemingly  abstruse  subject  would, 
if  there  were  nothing  else  to  commend  the  work,  distinguish  it  as 
one  of  pre-eminent  usefulness  to  the  profession. 

The  volume  herewith  submitted  is  founded  upon  and  embodies 
the  larger  portion  of  that  treatise.  My  original  undertaking, 
indeed,  was  merely  that  of  an  American  editor  of  the  English 
work.  While  engaged  upon  that  duty,  I  found  the  mass  of  new 
matter  to  be  incorporated  so  great  and  so  important  to  the 
American  lawyer  that  its  relegation  to  foot-notes  appeared  im- 
practicable. On  the  other  hand,  I  ascertained  that  much  in  the 
work  of  the  learned  English  jurist  was  inapplicable  to  the  law  of 
this  country  ;  that  many  essentials  in  the  understanding  and 
application,  under  our  system,  of  the  principles  of  statutory  inter- 
pretation were  neither  recognized  nor  alluded  to  in  his  work, 
because  alien  to  the  English  jurisprudence;  and  that  certain 
changes  of  arrangement  might  be  made  with  advantage  to  the 
American  reader.  To  have  interwoven  with  the  original  text  this 
mass  of  new  matter,  often  of  a  character  entirely  foreign  to  any- 
thing contemplated  by  the  author  ;  to  have  omitted  portions  of 
his  work,  no  doubt  by  him  regarded  as  material ;  to  have  changed 
his  arrangement,  the  divisions  of  his  book  and  the  titles  he  had 
given  them,  and  still  to  have  called  it  his  work,  would  have  been 
a  wrong  to  him  and  to  me.  The  only  proper  course,  it  seemed, 
was  to  make  a  new  book,  which  should  declare  itself  to  be  founded 
and  built  upon  Judge  Maxwell's  treatise,  in  which  full  credit 
should  be  prominently  given  for  all  that  is  derived  from  it,  but 
which  should  cast  no  apparent  responsibility  upon  him  for  any 
changes,  omissions  or  additions. 

iii 


Q6'}Bsr^ 


IV  PREFACE. 

This  it  is  that  I  have  clone,  and  such  is  the  character  of  the 
present  work.  Two-thirds  of  its  matter,  in  text  and  notes,  are  the 
result  of  my  labors.  I  have  changed  the  grouping  together  of 
subjects  in  tlie  various  chapters,  and  of  course  their  titles  ;  and 
whilst,  in  the  main,  the  order  in  which  the  subjects  are  treated 
has  been  retained,  in  some  instances  portions  of  the  text  have 
been  transferred  to  other  connections  or  incorporated  with  foot- 
notes. The  whole  has  been  divided  into  numbered  sections,  with 
appropriate  captions,  and  a  new  index  has  been  added.  What- 
ever of  Judge  Maxwell's  work  I  could  retain  I  have  retained,  as 
far  as  possible,  literally,  preferring  always  his  language  to  my 
own.  The  original  notes  to  the  text  reproduced  are  given  in  full 
as  they  appear  in  the  English  work,  with  such  trifling  corrections 
as  were  necessary.  And  in  order  to  mark  and  enforce  the  credit 
I  owe  and  desire  to  see  given  to  Judge  Maxwell's  work,  I  have 
enclosed  in  brackets  all  the  new  matter  added  by  me  to  the  origi- 
nal text  or  notes,  and  all  interpolations  or  changes  of  phraseology 
(except  such  as  substituting  "  legislature "  for  "  parliament," 
"  government "  or  "  state  "  for  "  crown,"  etc.,  where  such  altera- 
tions seemed  called  for  in  an  American  book),  and  have  retained 
the  reference  to  the  original  notes  by  letters,  whilst  numbering 
the  new  consecutively  throughout  the  chapter.  Transpositions 
and  omissions  I  could  not,  of  course,  indicate  without  becoming 
tedious. 

In  the  plan  of  the  work  I  have  labored  to  carry  into  the  larger 
and  more  diversified  field  of  American  decisions  the  system  that 
distinguishes  the  learned  English  author's  admirable  treatise — 
that  of  example,  which,  possibly  more  in  this  than  in  any  other 
subject,  excels  mere  precept.  The  innumerable  maxims  and 
technical  rules  of  statutory  interpretation,  shrouded  for  the  most 
part  in  a  dead  language,  are  well  enough  known.  The  difficulty 
is  in  their  application.  Judge  Maxwell,  in  his  work,  has  not  cast 
them  aside  as  useless  ;  but  he  has  translated  them  into  a  living 
language,  reduced  them  to  a  few  easily  grasped,  obvious  genei'al 
principles,  and  elucidated  their  force  and  effect  by  showing  the 
methods,  limits  and  results  of  their  application  in  decided  cases. 
I  have  not,  however,  confined  my  view  to  American  decisions, 
but  made  a  selection  of  those  also  of  the  English  courts  rendered 
Bince  the  publication  of*  the  last  edition  of  Judge  Maxwell's  work. 

Although,  in  a  work  of  this  character,  many  distinct  branches 
of  the  law — e.  g.,  Criminal  Statute  Law,  Internat  onal  Law,  the 
Conflict  of  Laws,  the  Law  of  Usury,  Contracts,  Corporations,  &c. — 


PREFACE.  V 

must  be  drawn  and  touched  upon  more  or  less  in  detail,  I  dis- 
claim for  this  work  any  pretensions  to  be  regarded  as  containing 
exhaustive  examinations  of  any  collateral  and  independent  topics 
of  legal  discussion.  They  are  introduced  only  as  incidental  to 
and  illustrative  of  the  general  subject,  the  interpretation  of 
statutes.  Nor,  in  my  opinion,  does  this  subject  involve  that  of 
constitutional  interpi-etation.  The  latter,  therefore,  has  been  ex- 
cluded, except  in  the  last  chapter,  where  it  is  entered  into  for  the 
purpose  and  to  the  extent  of  pointing  out  the  diiferences  and 
analogies  existing  between  the  two. 

The  text-books  I  have  principally  used  and  referred  to  are  the 
following  :  Bishop,  Written  Laws  and  their  Interpretation,  1882 
(cited  as  Bish.,  W.  L.)  ;  Buckalew,  Constitution  of  Pennsylvania, 
1883  (cited  as  Buckalew,  Const,  of  Pa.)  ;  Cooley,  Constitutional 
Limitations  (5th  ed.),  1883  (cited  as  Cooley,  C.  L.)  ;  Field,  Con- 
stitution and  Jurisdiction  of  the  Courts  of  the  United  States,  1883 
(cited  as  Field,  Fed.  Cts.)  ;  Jarman,  Wills  (5th  Am.  ed.,  Ptandolph 
&  Talcott),  1880  (cited  as  Jarm.,  Wills)  ;  Potter's  Dwarris,  Stat- 
utes and  Constitutions,  1871  (cited  as  Potter's  Dwarris)  ;  Sedg- 
wick, Interpretation  and  Construction  of  Statutory  and  Consti- 
tutional Lavv  (2d,  Pomeroy's,  ed.),  1874  (cited  as  Sedgw.) ; 
Wilberforce,  Statute  Law,  London,  1881  (cited  as  Wilb.,  S.  L.,  or 
merely  Wilb). 

G.  A.  E. 

Eeading,  Pa.,  May  1st,  1888. 


CONTENTS. 


Table  of  Cases  Cited  or  Introduced,  -----    Page  ix 

CHAPTER  I. 

SECTION. 

Literal  Interpretation,  -..-.-.  1-24 

CHAPTER  II. 

External  Circumstances,  Context  and  Acts  in  Pari  Ma- 
teria,             25-57 

CHAPTER  III. 

Title,  Marginal  Notes,  Punctuation,  Preamble,  Schedule, 

&c., 58-72 

CHAPTER  IV. 

Presumptions  Arising  from  Subject  Matter,  and  Object 

of  Enactments  as  to  Language  Used,    ...        -        73-112 

CHAPTER  V. 

Presumptions   Arising  from  Scope  and  Specific  Purpose 

of  Act,  and  as  to  Evasion  and  Abuse  op  Power,     -        -      113-150 

CHAPTER  VI. 

Presumptions  as  to  Jurisdiction,  Government,  Excess  op 
Legislative  Functions  and  Powers,  Violation  op  In- 
ternational Law,  Treaties  and  Constitution,       -        -      151-181 

CHAPTER  VII. 

Presumption  Against  Inconsistency.  Repeal  by  Implica- 
tion,          -      182-209 

CHAPTER  VIIL 

Presumption  Against  Repeal  by  Implication.    General, 

Special  and  Penal  Acts, 210-244 

vii 


Vlli  CONTENTS. 

CHAPTER   IX. 

EECTIOR. 

Presumption  Against  Unreason,  Inconvenience,  Injustice 

AND  Absurdity, 245-266 

CHAPTER  X. 

Presumption  Against  Construction  Permitting  Impairing 
OF  Contracts,  Advantage  from  own  Wrong,  and  Re- 
trospective Operation, 267-294 

CHAPTER  XL 

Exceptional  Construction  to  Effectuate  Legislative  In- 
tent,            295-328 

CHAPTER  XII. 
Strict  Construction, 329-356 

CHAPTER  XIII. 

Usage  and  Contemporaneous  Construction.    Legislative 

Construction.    Change  of  Language,  &c.,     -        -        -      357-395 

CHAPTER   XIV. 
Associated  Words, 396-416 

CHAPTER  XV. 

Impmcations  and  Intendments.  Directory  and  Impera- 
tive Provisions.    Impossibilities.    Waiver,  -        -        -      417-448 

CHAPTER   XVI. 

Effect  of  Statute  upon  Contracts  made  in  Contraven- 
tion THEREOF.    Public  and  Private  Implied  Remedies,      449-474 

CHAPTER  XVII. 
Repeal.    Commencement.    Judicial  Notice,         -        -        .      475-505 

CHAPTER  XVIII. 

Analogies  and  Differences  between  the  Construction 

OF  Statutes  and  that  of  Constitutions,       ...      506-540 

Addenda, pp.  761-765 

Ikdez, 766 


TABLE  OF  CASES 


CITED  OR  INTRODUCED. 


[TAe  reference  is  to  pages^ 


A. 

Aaron  v.  State,  681,  682, 

Aarunson,  Exp., 

Abbott  V.  Ci)mmon\vealth, 

V.  Goodwin, 

V.  Middleton,  4 

V.  Rogers,  642, 

V.  Wood, 
Abbotsford,  The, 
Abel  V.  Lee, 
Aberdare  v.  Haramett, 
Aberdeen  R.  Co.  v.  Blaikie, 
Abergavenny  v.  Biace, 
Abersystwith  Pier  Co.  v.  Cooper, 
Ablett  V.  Basham, 
Abley  v.  Dale,  7, 

Academy  of  Fine  Arts  v.  Phila- 

delpiiia, 
Acker  v.  Acker, 
Ackley  v.  Westervelt, 
ifflam  V.  Inhab.  of  Bristol,        13, 
Adams  v.  Ash  by, 

V.  Cbaplin, 

V.  Curtis, 

V.  Dohrmann, 

V.  Gay, 

V.  Graham, 

V.  Gt.  West.  R.  Co., 

V.  Tnrrentine, 

V.  Wood, 
Adey  v.  Trinity  House, 
Aechternaclit  v.  Watmough, 
Aeriited  Bread  Co.  v.  Gregg, 
.^Loa  Ins.  Co.  v.  Harvey,         648, 

V.  Reading, 
Agricult.  B'k  v.  Burr, 
Aicard  v.  Daly, 
Aicardi  v.  Alabama, 
Airy  Str.,  In  re, 
Ala.,  &c.,  Ins.  Co.  v.  Boykin, 

Warelionse  Co.  v.  Lewis, 
Albany  Str.,  Re, 


689 
203 
681 
629 
1,  96 
647 
458 
513 
437 
183 
6o3 
303 
124 
123 
605 

497 
279 
178 
447 
259 
396 
178 
552 
235 
350 
123 
5 

82 
282 
456 
113 
653 
558 
445 
508 
171 
171 
384 

52 
756 


Albee  v.  May,  367 

Albertson  v.  State,  252 

Albright  v.  Bedford  Co.,  506,  507 

V.  Lapp,  593 

V.  Payne,  77 

Alderson  v.  Maddison,  445 

Aldgate  v.  Slight,  623 

Aldridge  v.  Mardoff,  29 

V.  Williams,  38,  41 

Alexander  v.  Alexandria,  54 

V.  Commonwealth,  171 

V.  Miller,  541 

V.  Nelson,  361 

V.  Newman,  74 

V.  People,  248 

V.  State,     98,  223,  693,  694 

v.  Wortliington,  35,  45,  363 

Larsen,  The,  388 

Alexandria  v.  Dearmon,  279 

Alford  V.  Burke,  189 

A  Una,  The,  30,  220 

Allegheny  v.  Nelson,  704 

V.  R.  R.  Co.,  495,  599 

Co.  V.  Gibson,  718,  720, 


Allen's  Appeal, 

Allen  V.  Carter, 

V.  Coates, 

V.  Flicker, 


V.  Garbutt, 
V.  Ins.  Co., 
V.  Miller, 
V.  Parish, 
V.  R.  R.  Co., 
V.  Ramsey, 
V.  Savannah, 
Allentown  v.  Hower, 
AUerton  v.  Belden, 
Alliiusen  v.  Brooking, 
Allison  V.  R.  R.  Co., 

V.  Smith, 
Allkins  V  Jupe, 
Almy  V.  Harris, 


721,  731,  749,  759 

5,569 

763 

138 

92,  266,  519 

220 


4,  1*1 

13 

400 

244 

532 

157,  539 

708 

191 

367 

525 

107 

11,  74 

216,  670,  671 


IX 


TABLE    OF    CASES. 


Alresford  v.  Scott, 

Allsopi)  V.  Day,  195, 

Alter  V.  Sheplierd, 

Alton  V.  Trans.  Co.,  228, 

Wood's  Case, 

Altrinclmtn    Union    v.    Cheshire 

Lines  Committee,  703, 

Amalia,  The,  285,  242, 

Ainbergate  R.  Co.  v.  Midland  R. 

Co., 
Ament  v.  Humphrey, 
Amer.  Emigr.  Co.  v.  Adams  Co., 

Fur  Co.  V.  U.  S.,  114, 

Amherst  v.  Somers, 
Amy  V.  Dubuque, 
Ancketill  v.  Bay  lis,  126, 

Anderson  v.  Commonwealth, 
V.  Levelv, 

V.  Miiv,  '  510, 

V.  K.  k.  Co.,  95, 

Anding  v.  Levy,  650, 

Andover  v.  Gould, 
Andrew,  Re, 

Andrews  v.  King,  64, 

V.  People, 
V.  K.  R.  Co., 
V.  Scliott, 
V.  U.  S., 
Angele  de  Scntmanat  v.  Soul6, 
Anglo-Greek  St.  Co.,  He, 
Ankrim,  Re,  693, 

Ann,  The  Brig,  700, 

Anna,  The,  500, 

Annapolis,  The, 

V.  State,  681, 

Anon.,  292,  435,  667, 

Ansart  v.  U.  S., 
Anslee  v.  Nelras, 
Austey  v.  E<1  wards, 
Antiiony  v.  Slate, 
Antony  v.  Canlenham, 
App  V.  Coryell, 
Apperson  v.  Mem[)ius, 
Apple  V.  A{)ple,  5, 

V.  Crawford  Co.,  717, 

Appleby  v.  Myers, 
Aroi-neaux  v.  Benoit, 
Archer  v.  James,  8, 

V.  Jones, 
Arding  v    Bonner, 
Ariiia,  Tr.e, 
Armitage  v.  Walker, 

V.  Williamson, 
Armstrong  v.  Beaty, 
V.  Lewis, 
V.  Ross, 
A.rnold  v.  Arnold, 

V.  United  States,  547, 

Arnott  V.  Dimsdale, 
Arrowsmith,  Exp., 


596 
510 
144 
229 
253 

709 
245 

293 
292 
509 
453 
225 
509 
345 
262 
594 
517 
108 
692 
671 

61 
2u7 
271 
367 
486 
451 

21 
572 
701 
701 
503 
239 
682 
681 
110 

37 
482 
515 
136 
189 
427 
173 
734 
627 
143 
471 
167 

43 
119 
215 
479 
593 
646 
615 
242 
701 
605 
148 


Arrowsmith  v.  Hamering,  701 

Arthur  v.  Bokenliam,  152,  173 

V.  Dodge,  65 

V.  Morrison,  112,  113 

Ash  V.  Abdy,  40,  368,  482 

Ashburnliam  v.  Bradshaw,  368 

Ashbury  v.  Richie,  626 

Cam  Co.  V.  Riche,    563,  590, 
641 
Asld)y  V.  White,  666, 

Ashenden  v.  L  <k  Br.  R.  Co., 
Asliford  V.  Thornton, 
Asiiley  V.  Harrington, 
Assessors  v.  Osborne, 
Atchison,  &c.,  R  R.  Co.  v.  Black- 
shire, 
Atkins  V.  Disint'g  Co., 

V.  Pitcher, 

V.  Sleeper, 
Atkinson,  Re, 

V.  B.iker, 


673 
491 
697 
51 
683 


04 
44,  115 
388 
547 
242 
646 


V.    New    Castle   Water 


Works  Co., 
V.  Sellers, 
Atlanta  v.  G;ts  Light  Co., 

V.  White, 
Attenhorough  v.  Tiiompson, 
Auy-Gen.  v.  Alexander, 
V.  Allgood, 
V.  Baiiev. 
V.  Baidi",  ■ 
V.  Barker, 
V.  Basingstoke, 
V.  Bradbury, 
V.  Biadhiugh, 
Bristol, 


672,  673 
125 
433 
452 
123 
124 
227 
112 
502 
227 
662 
479 
501 


223 
45 


V.  Brown,  259,  282,  292 

V.  Cambridge,  497 

V.  Cam{)bell,  242 

V.  (Chelsea   Water 

Works,  255 

V.  Constable,  227 

V.  Davies,  196 

V.  Day,  445 

V.  Detroit,  &c.,  Co.,  45 

V.  Donaldson,  223,  226,  227 
V.  Eau  Claire,  246,  247 

V.  Forster,  500 

V.  Furness,  495 

V.  G.  E.  R.  R.  Co.,  76,  78, 
312,  591 
V.  Hackney  B'd,  344 

V.  Hallett,  96 

V.  Hill,  226 

V.  Horner,  336 

V.  Jones,  500 

V.  Joy,  729 

V.  Kwok  Ah  Sing,  39,  159, 
233,  401 
V.  Lamplough,  63 


TABLE   OF  CASES. 


Xl 


Atty. 

-Gen 

.  V 

Lloyd, 

368 

V. 

Lockwood 

10, 

148, 
399 

317, 
,464 

V. 

Napier, 

242 

V. 

Paiiter, 

700 

V. 

Parker, 

500 

V. 

Plank  R'd  Co., 

29 

V. 

Pougett, 

397 

V. 

Riddle, 

168 

V. 

Saggers, 

464 

V.  Siile.u,     38,  41,  387,  488 
V.  SoiUliampton,  211 

V.  Tyndall,  197 

V.  Weiiner,  740 

V.    Westni.    Chambers 

Assoc,  4,  69 

V.  Weymouth,  73 

Attree  v.  Hanie,  197 

Attwater,  Exp.,  8,  283,  514 

Aiiberi's  App  ,  383 

Auckland  v.  VVestm.  B'd,  47 

Auditor  v.  Halbert,  227 

V.  Haycraft,  44 

Aultmann's  App.,      71,  126,  248,  609, 

717 

Aurora,  The,  702 

V.  United  States,  678 

&c.,  Co.,  V.  Holthouse,         363 

Austen  v.  Howard,  294 

Austin  V.  Crawford,  120 

Austin  V.  Biinyard,  337 

V.Chittenden,  191 

V.  Foster,  484 

Avanzo  v.  Mudie,  613 

Avery  v.  Groton,  142,  488 

V.  Pixley,  543 

Ayers  v.  Knox,  7,  48 

Ayscougli's  Case,  223 


Babcock  V.  Goodrich,       358 

434,  654 

Bach  v.  Smith, 

649 

Bacon  V.  Lee, 

642 

Bagby  V.  Emerson, 

615 

Bagg's  Case, 

603 

Bailey,  Be, 

101 

V.  Bailey, 

216,  217 

V.  Bryan, 

174,  216 

V.  Commonwealth, 

4,  352 

V.  De  Crespigny, 

660 

V.  Harris, 

651 

V.  Mason, 

684,  685 

V.  R.  R.  Co., 

247 

V.  Rolfe, 

501,  502 

V.  Nweeting, 

482 

V.  Wallace, 

227 

Baines  v.  Swainson, 

160 

V.  Wormsley, 

418 

Baity  v.  Cranfleld, 

144,  378 

Baker,  Exp., 

Matter  of, 
v.  Baker, 
V.  Berkeley, 
V.  Compton, 
V.  Taylor, 
V.  Terrell, 
Baker's  App.,  88, 

Baldwin,  Exp., 

V.  Cooley, 
V.  Cuilen, 
V.  Flagg, 
V.  Newark, 
V.  Philadelphia, 
Ball,  Exp., 

V.  Billiard,  279, 

V.  Powers, 
Ballentine,  Exp., 

V.  Pulaski,      262,  728, 
V.  White, 
Ballston    Spa    Bank    v.    Marine 

Bank, 
Balliet  v.  Brown, 
Ballin  v.  Ferst, 
Baltimore  v.  Boyd, 

V.  Greenmount  Ceme- 
tery, 
V.  McKim, 

V.  Root,  22N, 

V.  State,  726,  731,  740, 

Bait.,  &c.,  E.  R.  Co.  v.  Grant, 

V.  Sherman, 
V.  Wilson, 
V.  Woodruff, 
Bambaugh  v.  Bambaugh, 
Bancroft  v.  Mitchell, 
Bane  v.  Wick, 
Banger's  Appeal, 
Bank  v.  Collector, 
v.  Edwards, 

for  Savings  v.  Collector,  63, 
of  Alexandria  v.  Dyer, 
Augusta  v.  Earle, 
Commerce's  Appeal,  445, 
England  v.  Anderson, 
Louisiana  v.  Farrar, 
Middlebury  v.  R.  R.  Co., 
Mobile  V.  Meagher, 
Pa.  V.  Commonwealth,  43 

U.  S.  V.  Dandridge,    557, 
v.  Donnally, 

AVashington  v.  Arthur, 
Banks,  Exp.,  427,  429, 

Bansemer  v.  Mace,  427, 

Bansbor  v.  Mansel, 
Barber,  Re  Cont'd  El'n  of,       275, 


V.  Gamson, 
V.  Reynolds, 


420, 


320 
451 
173 
534 
623 
614 
167 
483 
120 
349 
371 
170 
382 
713 
203 
390 
360 
419 
750 
566 

266 
102 
694 

126 

134 
474 
335 
743. 
745 
683 
707 
588 
597 
381 
102 
508 
248 
680 
191 
691 
106 
557 
625 
500 
51 
606 
515 
,88, 
495 
624 
245 
192 
430 
430 
692 
282, 
294 
425 
162 


xii                                             TABLE   01 

Tiarber  v.  Tilson, 

148 

V.  Waile, 

96 

llarbier  v.  Connolly, 

42 

Barcroft  v.  Roberts, 

549 

Harden  v.  Crocker, 

669 

Barkis  v.  State, 

213 

Barker  v.  Beeber, 

477 

V.  Bell, 

270,  271  i 

V.  Cassidy, 

99 

V.  Esty, 

39 

Barlow  v.  Teal, 

513 

V.  U.  S, 

183 

Barnard  v.  Backhaus, 

194,  656 

Barnawell  v.  Threadgill, 

212 

Barnes  v.  Ackroyd, 

141  j 

V.  Buck, 

129,  153  1 

V.  Jones, 

89 

V.  Mobile, 

363 

Barnet  v.  Scli.  Dir's, 

588  1 

Barnett  v.  Powell, 

100 : 

Barrack  v.  McCulloch, 

148' 

Barrett  v.  Holmes, 

509 

Barrow,  Exp., 

156 

V.  Wadkin, 

78 

Barry  v.  Randolph, 

593 

Barstow  v.  Smith, 

7 

Bartee  v.  R.  R.  Co., 

116 

Bartholomew  v.  Freeman, 

562 

Bartlett  v.  Bartlett, 

170 

V.  Donoghue, 

615 

V.  Gibbs, 

92 

V.  King, 

270 

V.  Kirk  wood, 

543 

V.  Morris, 

7,  80,  709 

V.  Smith, 

192,  194 

V.  Vinor, 

641,  642 

Bartolett  v.  Achey, 

453 

Barton  v.  Kavanaugh, 

630 

V.  Morris, 

130 

V.  Pigott,                206,  416,  643 

V.  Port  Jackson  Co., 

653 

V.  R, 

182 

Regis  V.  Liverpool, 

369 

Bartrufl'  v.  Remey, 

363,  373 

Barwick  v.  London  S.  Bank 

141 

Bass  V.  Irvin, 

119 

Bassett  v.  Carleton, 

217 

V.  U.  S., 

396,  701 

Bates  V.  Avon, 

227 

V.  Winstanley, 

209 

Bathurst  v.  Course, 

401 

Battersby  v.  Kirk, 

27 

Battishili  v.  Reed, 

550 

Battle  V.  Shivers, 

89,  90,91 

Battye  v.  Gresley, 

606 

Bauer  v.  Augeny, 

215,  736 

Bauinann  v.  James, 

37 

Baxendale  v.  G.  E.  R.  Co., 

347 

v.  Hart, 

409 

Baxter  v.  State, 

227 

V.  Tripp, 

9 

•'    ("ASES. 

Bay  V.  Gage,  362,  398 

Bavard  v.  Smith,  457 

Bay  City,  &c.,  R.  R.  Co.  v.  Austin. 

457,  683,  686 

Bay  ley  v.  Hazard,  616 

v.  Taber,  644 

Baylies  v.  Fettyplace,  658 

Beal,  Eip ,  469 

V.  Ford,  122 

Beall  V.  Harwood,  401 

V.  Kiah,  169 

Beals  v.  Hale,  261,  281 

Beams,  Matter  of,  389 

Bear's  Adm'r  v.  Bear,    36,  61,  99,  238 

Beard  v.  Rowan,  78,  81,  148 

Beardstown  v.  Virginia,  712,  714,  717, 

720 

Beaston  v.  Bank,  116 

Beatty  v.  People,  690 

Beaufort  (Duke)  v.  Smith,  524 

Beck  v.  Church,  333 

Becke  v.  Smith,  4,  399,  402 

Becker's  Appeal,  363 

Becket  v.  Building  Association,       615 

Beckford  v.  Wade,  155 

Beckman  v.  Drake,  330 

V.  Skaggs,  713,737,739,741 

V.  Stanley,  615 

Beckwith  v.  Douglas,  547 

Beekworth  v.  Talbot,  482 

Beddow  v.  Beddow,  153 

Bedell  v.  Janney,  476 

Bedford  v.  Hood,  668 

V.  Shilling,  362,  367 

Beds  v.  St.  Paul,  226 

Beecher  v.  Rolling  Mill  Co.,  634,  654 

Beeston  v.  Beeston,  647 

Belasco  v.  Hannant,  80 

Belfast  v.  Folger,  97 

Bell  V.  Bilton,  >        381 

V.  Crane,  423 

V.  Morrison,  509 

V.  New  York,  400 

V.  Quin,  644 

V.  Tavlor,  621 

Belleville  R.  R.  Co.  v.  Gregory,  44,  363 

Bellew  V.  Wonford,  13 

Beltzhoover  v.  Gallings,  216,  612,  616 

Belvidere  v.  R.  R.  Co.,  688 

Bemis  v.  Becker,  650 

V.  Leonard,  548 

Benfield  v.  Solomon,  446 

Benjamin  v.  Storr,  674 

Bennet  v.  Hargiis,  684 

Bennett  v.  Art  Union,  542 

V.  Atkins,  638 

V.  Birmingham,  490 

v.  Bittle,  333 

V.  Brunfitt,  66 

V.  DMniel,  529 

V.  Edwards,  148 


TABLE  OF   CASES. 


Bennett  v.  Hollman, 

173 

V.  MoWliorter, 

497 

V.  Maltingly, 

362 

634 

V.  WmfcI, 

221 

V.  Watson, 

156 

V.  Woolfulk, 

692 

Bensley  v.  I!i<i;tiokl, 

649 

V.  Ellis, 

391 

V.  Hotiiier, 

191 

Bent  V.  Hiibbardston, 

515 

V.  Koberts, 

124 

Bentliam  v.  lioyle. 

491 

Bent  ley  v.  Rotherain, 

7 

i,  82 

Benton  v.  Wickwire, 

7 

Beridon  v.  Barbin, 

303 

Bergey's  App., 

178 

Berkeley  Peerage, 

350 

Berley  v.  Kanipacher, 

367 

Berliner  v.  Waterloo, 

703 

Burnier  v.  Becker, 

395 

Berry  v.  Clierryholm, 

293 

V.  Clary,              35,  45, 

387 

390 

Berwick  v.  Andrews, 

439 

Bessev  v.  \Vindham, 

359 

Best,  'Exp., 

637 

V.  Gholson,                609, 

612 

615 

V.  Pembroke, 

97 

Bestor  v.  Powell, 

5 

408 

Beta,  The, 

406 

Bet  ham  v.  Gretji^, 

361 

Bethlehem,  &c.,  Co.  v.  Yoder,  180,  217 
Beltis  V.  Taylor,  451 

Bevens  v.  Baxter,  705 

Beveridge  v.  Hewitt,  194 

Bidden  v.  Leader,  656 

Biddis  V.  James,  644 

Biddulph  V.  St.  George's  Vestry,    203 
Bid  well  V.  Whittaker,  7 

Biffin  V.  York,  8 

Big  Black  Creek,  &c.,  Co.  v.  Com- 
monwealth, 33,  36, 196,  400,  401,  409 
Bigelow  V.  R.  K.  Co.,  247 

V.  Stearns,  213 

V.  Wilson,  548,  549 

Biggs  V.  Mitchell,  564 

Billings,  Re,  362 

V.  Harvey,  265 

V.  Prince,  606 

Billingslea  v-.  Baldwin,  54,  282 

Billingsley  v.  Slate,  71,  248,  249 

Billington  v.  Wagoner,  191 

Bingham  v.  Athna,  140 

V.  Miller,  743 

V.  Snperv's  of  Winona,  68 
Bingliamton  Bridge  Case,  485,  709 
Binney  v.  Canal  Co.,  400 

Binns  v.  Hey,  388 

Bird  V.  Adcock,  312,  696 

Birkenhead  Docks  v.  Laird,  313 

Birkett  v.  Chatterton,  641 

Birley  v.  Chorlton,  211 


Biriningliani  v.  Shaw,  326 
Bertwhistle  v.  Vardill,  76 
Bishops'  Case,  678 
Bisliop,  Exp.,  213 
V.  Barton,  89,  234 
V.  Bishoft.  763 
V.  Schneider,  534 
Bissel  V.  Lamed,  671 
Bitt  V.  Beeston,  562 
Bitting  V.  Commonwealth,  712 
Black  V.  Canal  Co.,  509,  704 
V.  Halstead,  405 
V.  Scott,  58 
V.  Tricker,  54 
Blackburn  v.  Walpole,  272,  537 
Blackman  v.  Wheaton,  173 
Black  well's  Case,  418 
V.  England,  123 
Blackwood  v.  Regina,  52 
Bladen  v.  Philadelphia,  609 
Blades  V.  Lawrence,  53 
Blaiberg,  E.cp.,  67 
Blain  v.  Bailey,         281,  282,  292,  300 
Blaisdell  v.  Winthrop,  217 
Blake  v.  Attersoll,  566 
V.  Brackett,  411 
V.  Midland  R.,  74 
V.  Nat.  B'k,  43 
V.  R.  R.  Co.,  427 
V.  Sherman,  477,  617 
Blakemore  v,  Dolan,  265 
V.  Glamorganshire  Ca- 
nal Co.,  494 
Blanchard  v.  Sprague,  50,  437 
Blanck  v.  Pansch,  614 
Blankley  v.  Winstanley,  500 
Bleatenberger  v.  Holman,  194 
Bledsoe  v.  Doe,  227 
V.  Thompson,  189 
Bleecker  v.  Ballou,  134 
Blemer  v.  People,  412 
Blithman,  Re,  241 
Bloodgood  V.  Gracey,      509,  513,  517, 

518 

Bloom  V.  Bnrdich,  621 
Bloom  field,  &c.,  Co.  v.  Calkins,       730 

Bloxome  v.  Williams,  359 

Blue  V.  McDuffie,  81 

Bhindell  v.  Gladstone,  37 

Blunt  V.  Heslop,  546 
Bly  V.  Bank,  191,  652,  655 
Blyth  V.  Birmingh.  Water  Works 

Co.,  597 

Boas  V.  Nagle,  593 

Boast  V.  Firth,  627 

Boldero  v.  Jackson,  193 

Bole  V.  Horton,  350 

Bolina,  The,  456 

BoUand,  Ej-p.,  28 

Bollin  V.  Shriner,  413 

Bolton  V.  Bolton,  636 


XIV 


TABLE   OF   CASES. 


Bolton  V.  KiiiK, 

Bonar  v.  Mitchell, 

Bond  V.  Appleton, 
V.  Bond, 
T.  Bunting, 
V.  Hopkins, 
V.  Jay, 
V.  Munro, 
V.  Rosling, 
V.  St.  George's, 

Bones  v.  Booth, 

Bonliani's  Case, 

Bonnewell  v.  Jenkins, 

Bonoini  v.  Backiioiise, 

Booiile  V.  Davis, 

Boody  V.  Watson, 

Booknight  v.  Kpting, 

Boon  V.  Bowers, 
V.  Howard, 
V.  Jniiet, 

Boonville  v.  Orinrod, 

Booth  V.  Clive, 

V.  liibotson, 
V.  State, 

Booth royd,  Re, 

Booz's  A  pp., 

Borlin  v.  Higliberger, 


143 

626 
510 
237 
99,  169 
445 
234 
363 
530 
122 

459, 541 
152,  246,  449 
482 
13 
388 
628 
370 
508 

343,  437 
254 
349 
403 
500 
198 
435 
54,  271 
25 


Bosanqnet  v.  Woodford,  624 

Bosler  V.  Rheem,  638 

Bosley  v.  Davies,  337,  528 

V.  Mattinglev,  7,  8 

Bostock  V.  Staffordshire  E.  Co.,       492 

Boston  V.  Siiaw,  216 

Min.,  &c.,  Co.,  Re,  75,  756 

etc.,  R.  R.  Co.,  Eip.,  225 

Co..  V.  Boston,  429 

V.  Gardner,  144 

Boncicault  v.  Chatterton,  96 

Bounty  Acc'ts,  Re,  299,  305 

Bourgignon  B.  A.  v.  Com'th,  57,  259, 

497,  555 

Bovard  v.  Kettering,  592 

Bowden  v.  Gray,  370 

Bowen  v.  De  Liiltre,  589 

V.  Lease,                251,  259,  280 

V.  Striker,  367 

Bowers  v.  Sonoma  Co.,  429 

Bowl  by  V.  Bell,  562 

Bowman  v.  Blytli,  609 

V.  Kistler,  136 

Bows  V.  Fenwick,  137,  578 

Bowyer  v.  Bamplon,  358 

Boyce  V.  Higgins,  329 

Boydell  v.  iJrnmmond,  445,482 

Bover  V.  Bui  lard,  153 

Bover's  Road,  618 

Bovfield  V.  Porter,  215 

Boyle  V.  Arlidge,  509 

V.  Horner,  60 

Bracey's  Case,  454 

Bracken  v.  Smith,  272 


Bracket  v.  Hoyt,  644 

Bradl)ury  v.  Hotten,  330 

V.  Wagenhorst,        7,  9,  411 

Bradford  v.  Barclay,  375 

V.  Jones,  74 

Brad  laugh,  Erp.,  214 

Bradley  v.  Bay  I  is,  125 

V.  (Jreenwich  B'd,  27 

V.  Joiinson,  178 

V.  People,  180,  349 

V.  Southampton  B'd,  218 

Bradshaw  v.  L.  &  Y.  R.  Co.,  439 

V.  Omaha,  42 

Bradstreet  v.  B'k,  606 

Brady  Sir.,  Re,  573 

Brainard  v.  Norton,  552 

Bramston  v.  Colchester,  310 

Pramweil  v.  Penneck,  568 

Branagan  v.  Dulaney,  252,  259 

P.t:ancli  V.  Haas,  757 

Branch  B'k  v.  Murphy,  701 

Brand  v.  Hammersmiih  Ry.  Co.,    90, 

91,  350 
Brandling  v.  Barrington,  446 

Braneth  v.  Havering,  155 

Branham  v.  Lange,  262 

V.  -Long,  289 

Branson  v.  Wirth,  524,  525 

Brantley  v.  Jcwdan,  629 

Branton  v.  Griffets,  195 

Bratton  v.  Guy,  375 

Hreitenbach  v.  Bush,  486 

Breiiung  v.  Lindauer,  264,  265,  486 
Brenan's  Case,  623 

Brett  V.  Beals.  524 

V.  Brett,  74,  80 

Bretz  v.  New  York,  703,  705,  708 

Brewer  v.  Blougher,  12,  93,  95,  115 
Brewster  v.  Brewster,  390 

V.  Kitchell,  658,  659 

Brick  Pres.  Ch.  v.  New  York,  659 
Brickett  v.  Haverhill  Aqued.,  433 
Bridge  v.  Ikanch,  213,  538 

V.  Hubbard,  191 

Co.  V.  Huboken,  &c.,  Co.,   K'8, 
484,  495 
Bridgeport  v.  R.  R.  Co.,  591 

Bridger  v.  Richardson,  564 

I'ridges  v.  Fisiier,  6-17 

Brien  v.  Williamson,  724 

Bi-igden  v.  Heigiies,  3.'-l7 

Briggs  V.  Easterly,  347,  357 

V.  Hubbard,  363 

Brightman  v.  Kirner,  238 

Brink  ley  v.  Swicegood,  678 

Brinsnn  v.  State,  23 

Brinstield  v.  Carter,  50,  227 

I'.ritish  Farmers',  &c.,  Co.,  Re,  7 

Briti  V.  Robinson,  463,  469 

IJroad  V.  Broad,  101 

Broad  St.  Hotel  Co.  v.  Weaver,       703^ 


TABLE    OF    CASES. 


XT 


Broadbent  v.  Imper.  Gas  Co.,     88,  91 
Broadihis  v.  Hniaddus,  272,  537 

Broad  head  v.  Iloldsworth,  4(55 

Broadwell  v.  Conger,  453 

Brocket  v.  E.  R.  Co.,      4,  5,  6,  12,  556 
Brockway  v.  Kowley,  714 

Brodie  v.  Cliandos,  197 

Bromley  v.  Goodrich,  361 

V.  Ilohlen,  666 

Bronson  v.  vViriian,  707 

Brook  V.  Brook,  234,  237 

Brookbank  v.  Whilehaven  R.  Co.,  422 
Brooke  v.  Shadgate,  163 

Brooker  v.  Ward,  647 

V.  Wood,  139 

Brooklyn  L.  Ins.  Co.  v.  Bledsoe,   648, 

653 

Brooks  V.  Avery,  191 

V.  Bockeit,  388 

V.  Boswell,  593 

V.  Cock,  613 

V.  Commissioners,    29,  44,  282, 

298,  299 

Brotherton  v.  Brotherton,  691 

Broughton  v.  Manchester  Water 

Works,  590 

Brower  vl  Bowers,  144,  378 

Brown,  Exp.,  489 

Be,  531 

Brown's  Appeal,  731,  734 

Case,  467 

Brown  v.  Barry,       174,  400,  512,  677, 
678,  680 
V.  Bennett,  615 

V.  Berry,  51 

V.  Brown,  362 

V.  Buzan,    _  246,  547,  558 

V.  Commissioners,  252 

V.  Conseno,  279 

V.  Dillahunty,  658,  659 

V.  Duncan,  651 

V.  Fifield,  734 

V.  G.  W.  R.  Co.,    96,  251,  275, 
599 
V.  Hamlett,  436 

V.  Hitchcock,  717 

V.  Holyhead  B'd,  491,  658 

V.  Howard,  13 

V.  Hunn,  198 

V.  Lester,  627 

V.  London  (Mayor),  660 

V.  London,  &c.,  R.  Co.,         124 
V.  McLachlan,  531 

V.  Miller,  292 

V.  Ry.  Co.,  616 

V.  8haw,  630 

V.  Slate,  503 

V.  U.  S.,  505 

V.  Wilcox,  160,  363 

V.  Worcester,  756 

V.  Wright,  401 


Browning,  Exp., 

656 

V.  Cover, 

379 

Bruce,  In  re, 

242 

V.  Schuyler, 

54,  292, 

363 

Brumfitt  V.  Bremner, 

620 

V.  Roberts, 

163, 

628 

Brun  V.  David, 

544 

Bruni,  Re,       _  214,  223,  236 

Brnnner's  Appeal,  597 

Brimskill  v.  Watson,  484 

Brunton  v.  Griffitlis,  520 

Brush  V.  Bogardus,  119 

Bruveres  v.  Halcomb,  538 

Bryan  v.  Child,  86,  88,  529 

V.  Dennis,  54 

Bryant,  Be,  106 

V.  Livermore,  51 

V.  Merrill,  373 

Buccleuch  v.  Metr.  B'd,  504 

Buchanan  v.  Hazzard,  202 

V.  Kinning,  605 

V.  Smith,  175 

Bucher  v.  Commonwealth,      451,  571, 

637 

Buck  V.  Spofford,  537 

Biickalew  v.  Ackerman,  318 

Buckhurst  Peerage,  657 

Buckingham  v.  Moss,  390' 

V.  Steubenville,  281 

Buckle  V.  Wrightson,  286 

Buckley  v.  L'owrie,  488 

Biickner  v.  Street,  740 

Buck  waiter  v.  U.  S.,  341 

Budd  V.  Ry.  Co.,  496 

Buell  V.  Warner,  707 
Bufiklo  City  Cemetery  v.  Buffalo,    497 

Building  Association  v.  Kribs,  664 
V.  Thompson,  545 

Bulkley  v.  Eckert,  229,  335 

Bull  V.  Chapman,  642 

V.  Harragan,  650 

V.  Loveland,  68 

BuUard  v.  Raynard,  191 

V.  Stuith,  194 

Bullock  V.  Horn,  487 

Biilt  V.  Price,  663 

Bunny,  Exp.,  550 

Burch  V.  Newbury,  436 

Burden  v.  Stein,  27 

Burdenell  v.  Vaux,  543 

Burdick  v.  Connell,  629 

Burgess'  Case,  359 

Burgeti's  Lessee,  142 

Buigett  V.  Burgett,  74 
Burke  v.  Jeffries,       281,  288,  306,  712 

V.  -Monroe,  44,  48 

Burling  v.  Harley,  403 

Burn  v.  Carvalho,  700 

Burnby  v.  BoUeit,  183 

Burnett  v.  Thompson,  167 

Burnham  v.  Acton,  705 


XVI 


TABLE   OF   CASES. 


Buinham  v.  Onderdonk, 

V.  Stevens, 
Burns  v.  Bryan, 

V.  Nowell, 
Burnside  v.  Whitney, 
Burrows  v.  Bash  ford, 
Burroughs  v.  Hunt, 
Burwell  v.  Tullis, 
Busli  V.  Republic, 
Bussing  V.  Buslinell, 
Bustros  V.  White, 
Butcher  v.  Henderson, 
Bute  V.  (Irindall, 
Butler's  Appeal, 
Butler  V.  Palmer, 
V.  Kicker, 
V.  Kobinson, 
V.  Russel, 
Co  V.  Leibold, 
Butts  V.  R.  R.  Co., 
Butterfield  v.  Okie, 
Butz  V.  Muscatine, 
Buxton  V.  N.  E.  R.  Co., 

V.  Rust, 
Byrne  v.  Stewart, 
V.  Walker, 
Byerley  v.  Prevost, 
Byrd  v.  State, 


O. 


558 
531 
342 
369 

143,  174 

613 

189 

265,  385,  398 

318,  323 
174 

418,  514 

684,  693 
226 
574 

684,  685 
453 

707,  708 
678 
21 
257 
170 
509 
672 
483 
259 
161 
195 

510,  519 


547 
357 
152 
191 
271 
191 
734 
202 
59 
309 
242 
492 


Cable  V.  Coates, 
Cabot,  &c.,  Co.  V.  Chapin, 
Cadbury  v.  Duval, 
Cadys  v.  Goodnow, 
Cahall  V.  Cit.  Mut.  B.  A., 
Cain  V.  Genion, 

V.  Goda, 

V.  Ligon, 

V.  State, 
Cairo  v.  Bross, 

Calcutta  Jute  Co.  v.  Nicholson, 
Cahi.  &  H.  Nav.  Co.  v.  Pilling, 
Calder  v.  Bull,  320,  367,  381 

Calderwood  v.  Calderwood,  104 

Caldow  V.  Pixel  1,  613,  623 

Caldwell  v.  State,  373,  382,  389 

Caledon.  R.  Co.  v.  N.  Brit.  R.  Co.,   33 
Calkins  v.  State,  681 

Calloway  v.  Crossart,  232 

Camden  V.  Allen,  216,671 

&c  ,  R.  R.  Co.  V.  Briggs,    495 
Cambridge  Union  v.  Parr,  62 

Cameron  v.  Cameron,  41 

V.  Smith,  279 

V.  Superv's,  217 

Cammeyer  v.  United,  &c.,  Churches, 

244 

Camp  v.  Rogers,  127,  247 

V.  Ingersoll,  218 


Campan  v.  Fairbanks, 
Campbell's  Case, 
Campbell,  Exp., 

v.  Allison, 

v.  Case,  272, 

V.  Grooms, 

V.  Im  Thurn, 

v.  .Johnston, 

V.  Mauntl, 

V.  Qiiinlin, 

V.  Slate, 

V.  Strangeways, 

V.  Thompson, 
Campfield  v.  Lang, 
Canady  v.  George, 
Canal  Co.  v.  R.  R.  Co.,  45,  54,  81, 
401. 

v.  Schroeder, 
Canastata,  &c.,  Co.  v.  Parkhill, 
Caniff  v.  New  York, 
Cannon  v.  Mathes, 

V.  Vaughan, 
Canterbury's  (Abp.)  Case, 
Cant  well  v.  Owens, 
Cape  Girardeau    Co.  Ct.  v.  Hill, 

V.  Riley, 
Caperton  v.  Martin, 
Care  v.  Keller, 
Carey  v.  Giles, 

V.  Whitney,  227, 

Carhart,  Re, 

Carlisle  v.  State,  681, 

V.  Stiller, 
v.  United  States, 
Carl's  App , 
Carlton  v.  Felder, 

V.  Whitcher, 
Carmichael  v.  Bodfish, 
Caroline,  The, 
Carothers  v.  Phila.  Co., 
Carpenter's  App, 
Case, 
Carpenter  v.  Browning, 

v.  People,  449,  712,  714, 


v.  Shimer, 
Carpue  v.  London,  &c.,  R.  Co., 
Carr  v.  Royal  Exch.  Ass.  Co., 
(Jarron  Iron  Co.  v.  Maclaren, 
Carrow  v.  Bridge  Co., 
Carruthers,  JExp., 
Carson  v.  Love, 

V.  Miii'g  Co., 
Carter's  Ai)p., 
Carter  v.  Burl, 

V.  Haw  ley, 

V.  Murcot, 

V.  Peck, 

V.  Slate, 
Carver  v.  Smith, 


58, 


213 

386 
514 
616 
537 
612 
158 
191 
155 
517 
481 
544 

98 
131 
699 
251, 
703 
4 
291 
622 
756 

54 
579 
726 

61, 
272 
755 
390 
370 
459 
228 
549 
682 
486 
233 
110 
509 
644 
191 
352 
764 
533 
594 
374 
715, 
716 
375 
403 

80 
124 
707 
268 
548 
664 
161 
316 
318 
182 
665 
130 
282 


TABLE   OF   CASES. 


XVU 


Gary  r.  Marston, 

116 

Cascades  R.  R.  Co.  v.  Sohns, 

307 

Case  V.  Dunraore, 

63-1 

V.  Mobile, 

706 

V.  Storey, 

561 

V.  Wildridge, 

6 

Casey  v.  Harned,       239, 

259 

281,  289 

Casher  v.  Holmes, 

579 

Casliman  v.  Henry, 

178 

Castalli  v.  Groom, 

419,  426 

Castle  V.  Biirdett, 

547 

Castner  v.  Sliker, 

761 

V.  Walrod, 

279 

Caswell  V.  Worth, 

293 

Cate  V.  State, 

292,  314 

Gates  V.  Knight, 

214,  528 

Cathcart  v.  Hardy, 

552 

V.  Robinson, 

509, 

517,  519 

Catlin  V.  Gnnter, 

446 

V.  Hull, 

45,  95 

V.  Smitli, 

200,719 

Catling  V.  King, 

483 

Cattaraugus  Co.  v.  Willey, 

280 

Catterlin  v.  Frankfort, 

547 

Caughey  v.  Pittsburgh, 

215 

Caverow  v.  Ins.  Co., 

100 

Gearfoss  v.  State, 

8,  12,  93 

Gentr.  B'k  v.  Empire  Stone  Co.,     692 

V.  Kendrick,  294,  623 

Gentr.  R.  R.  Go.  v.  Russell,  637 

V.  Swint,  244 

Cesena  Sulph.  Go.  v.  Nicholson,  124, 

242 

Chad  wick  v.  Collins,  130 

Chaffer's  A  pp.,  29,  465,  475 

Chafia  V.  B'k,  116 

Chahoon  V.  State,  714 

Chamberlain  v.  Chamberlain,  280,  281 

V.  Dempsey,  191 

V.  Evansville,  694 

V.  King,  401 

V.  Spargur,  761 

V.  West.  Transp.  Co.,  175 

Chamberlaine  v.  Chester  R.  Co.,  668, 

670,  673, 

Chambers  v.  Carson,  531 

V.  Green,  213 

V.  Manch.,  &c.,  R.  Co.,   495 


V.  State, 
Champion  v.  Plummer, 
Chance  v.  Adams, 
Chandler  v.  Lee, 
V.  Main, 
V.  Northrop, 
Chapin  v.  Dake, 

V.   Persse,  &c., 

Chapman  v.  Chapman, 
V.  Forsyth, 
V.  Miller, 
V.  Milvain, 


436 

483 

73 

59,  351 

235 

448,  513 

358 

Works,    175, 

454,  487 

571 

120 

108,  136,  202 

276 


,  Chapman  v.  State,     219,  220,  353, 

V.  Robinson, 
Chappel  V.  Puniay, 
Charles  v.  Blackwell, 
Charless  v.  Lamberson,  366,  486, 

Charlewood  v.  Bedford, 
Charlotta,  Tlie, 
Chariton  v.  Hay, 
Gharriugton  v.  Meatheringbara, 
Chartered    Merc.  B'k  v.  Nether- 
lands, &c.,  St.  Nav.  Co., 
Chartered  Mere.  B'k  v.  Wilson, 
Chase  v.  Dvvi.ial, 

V.  Sieainb.  Co., 
Gbatterton  v.  Gave, 
Chelsea  Vestry  v.  King, 

Waterworks  v.  Bowley, 
Cherry's  Est.,  la  re, 
Cherry  Overs' rs  v.  Marion  Over- 

s'rs, 
Cherokee  Tobacco,  The, 

Lodge  V.  White, 
Nat'n  V.  Georgia,      725, 
Chesapeake,  &c.,  Ry.  Go.  v.  Hoard, 

R.  R.  Go.  V.  Mil- 
ler, 718, 

Chestnut  v.  Shane,  501, 

Chew  Heong  v.  U.  S.,  281. 

Gheezera  v.  State, 

Chicago  V.  Iron  Works, 

&c.,  Rv.  Co.  v.Allfree, 

V.Dunn,   100, 
V.  Knox  Coll., 
V.  Pounds, 
V.  Smith, 

Chick  V.  Smith, 

Cbilcoat's  App., 

Child  v.  Hearn, 

Ghibiers  v.  Jolinson, 

Ghilds  V.  Shower, 
V.  State, 

Chilton  V.  L.  &  G.  R.  Co., 

Ghinnery  v.  Evans, 

ClioUar  V.  Min'gCo., 

Ghorlton  v.  Lings, 

Cliouieau  v.  Allen, 

Ghristopherson  v.  Lotinga, 


18, 


Christ's  Hosp'l  v.  Hawes, 
Christy,  Exp., 
Church  V.  Crocker, 

V.  Hul)l)ard, 

V.  Stadler, 
Churchill  v.  Bank, 

V.  Grease,  288,  385, 

Churchman  v.  Martin, 
Cicero,  &c..   Drain.  Go.  v.  Craig- 
head, 
Cigala's  Settlem't,  Be, 


410 
328 

383 
139 
693, 
700 

483 
185 
668 
681 

245 
563 
332 
116 
330 
46  L 
571 
23 

616 
243 
378 
751 

298, 
308 

719 
505 
362 
694 
551 
228 
142 
217 
246 
217 
544 

66 
581 

51 
263 
557 
492 
200 
488 
156 
653 
145, 
437 
155 
120 

62 
24S 
25ft 
643 
681 
168 

707 
242 


XVIU 


TABLK    OF    CASES. 


Cincinnati  v.  Evans,  229  : 

V.  First  Presb.  Ch'ch,  229 
Bank  v.  Biirkhardt,  545 
Coil.  V.  Ohio,  497 

V.  Yeatman,  541 

Gas,  &c.,  Co.  V.  Avon- 
dale,  IH) 
Citizen's  Gas  Li^hl  Co.  v.  State,      395 
Mutual  1j.,  &c.,  Ass'n  v. 
"Webster,                                            492 
Clack  v.  Sainsburg,                   291,  292 
CLiigdoii  V.  Green,  TG 
Clan  Gordon,                                       288 
Clapp  V.  Burlington,                           124 
V.  Hanson,                                192 
Clare  v.  Stale,                                        44 
Clarence  R.  Co.  v.  G.  N.,  &c.,  R. 

Co.,  590 

Clark's  Succ'n,  344 

Clark  v.  Bynum,  81 

V.  Denton,  658 

V.  Dotter,  356,  504 

V.  Gaskarth,  570 

V.  Ins.  Co.,  642 

V.  Janesville,  602,  704,  706 

V.  Lord,  693 

V.  McCann,  279 

V.  Martin,  98 

V.  Mid.lleton,  648 

V.  R.  R.  Co.,  517 

V.  Robinson,  610 

V.  Snyder,  628,  631 

v.  Utica,  96 

v.  Wallond,  513 

Clarke  v.  Bradiaugli,  544 

V.  Brooklield,  591 

v.  Bury  St.  Edmunds,  124 

V.  Crowder,  410 

V.  Gant,  619 

V.  Grant,  266 

V.  Gibbons,  279 

V.  McAnulty,  635 

V.  Powell,  60 

V.  Roche,  337 

V.  Rochester,  256,  702 

Clarion  Bank  v.  Gruber,  707 

Clawges  V.  Clavvges,  215 

Clawson  V.  Hutchinson,  371 

Clav  V.  Ray,  647 

'  Co.  V.  Soc'y,  281 

Claydon  v.  Green,  78 

Clavs  V.  Sudgrave,  503 

ClaVlon's  C;tse,  544 

Clayton  v.  Drake,  109 

Cleaver  v.  Sheets,  160 

Cleaves  v.  Jordan,  52 

Clemenston  v.  Mason,  47 

Cleveland  v.  State  Bank,  579,  597 

&c.,  R.  R.  Co.  V.  Erie,    496 
V.  Penn- 
sylvania, 235 


Cleveland,  <kc.,  R.  R.  Co.  v.  Speer,  225 
Tel.  Co.  V.  Metro- 
politan Fire  Com'rs,  334 
Clifford  v.  Walts,  627 
Clift  v.  Schwabe,  500 
Clinton  Bridge,  382 
Clinton  v.  Phillips,  616 
Ciohessy  v.  Roedelheim,  331 
Clothier  v.  Webster,  598 
Clow  V.  Plarper,  503 
Clowes  v.  SlaHbrdsliire  Potteries,    495 
Clyde  Nav.  Trustees  v.  Laird,         504 
Coal  heavers'  Case,  588 
Coaies  v.  Campbell,  757 
Coals  V.  Hill,  275 
V.  Holbrook,  244 
Coatsworth  v.  Barr,  104 
Col)b  V.  M.  W.  R.  Co.,  481 
Cobham  v.  Dalton,  291 
Coburn  v.  Odell,  644 
Cochran's  Est.,  Re,  377 
Cochran  v.  Douglass,                 364,  365 
v.  Young,  23 
Cockerell  v.  Dickens,  241 
Cocking  V.  Ward,  445 
Codfield  Graiuinar  Sch.,  In  re,         155 
Coe  v.  Lawrence,                          10,  465 
V.  Wise,  186 
Coffin  V.  Rich,                                   7,  62 
Coff'man  v.  Davaney,  616 
Coggins  v.  Bennett,  550 
Coghill  V.  State,  321 
Cohen  v.  Barrett,  74 
Cohn  V.  Neeves,                        ISO,  457 
Colburn  v.  Swett,  661 
Colchester  v.  Brooke,  674 
V.  Kewney,              101,  226 
Cole  V.  Bansemer,  191 
V.  Coulton,  317 
V.  Green,  626 
V.  Groves,  4o7 
V.  Haves,  326 
V.  Milmine,  194 
V.  People,  518 
V.  R.  R.  Co.,            .         139,  333 
V.  Savage,  191 
V.  WHiite,  223 
Coleman  v.  Birruingbam,  155 
v.  Davidsun  Acad'y,  62 
V.  Dobbins,  44 
V.  Hart,  474 
V.  Peshtigo  Co.,  231 
V.  Thurmond,  229 
Coles  V.  N.  W.  B'k,  160 
Collier  v.  Baptist  Soc'y,  704 
V.  M.  L.  Com'rs,  598 
V.  State,  389 
V.  Worth,                       114,  464 
Collins  V.  Blantern,  ^93 
i                V.  Carman,  7,  8 
I               V.  Gwynne,  656 


TABLE   OF   CASES. 


XIX 


■Collins  V.  Eose,  550 

V.  Smith,  (378 

Collinson  v.  Newcastle  R.  Co.,         666 
Col  I  urn  V.  Pettii>;rew,  615 

Colonial  B'k  v.  Willan,  214 

Colt  V.  Ives,  617 

Coliimb.  Tiirnp.  R'd  v.  Haywood,  547 
Columbus  Ins.  Co.  v.  Walsli,  648 

Colvill  V.  Wood.  69 

Colvin  V.  Buckle,  13 

Colwell  V.  Mays  Land'g,  &c.,  Co., 

246,  248 

Combe  v.  Pitt,  544 

Combs'  Appeal,  28,  484 

Comfort  V.  Leland,  411 

Comius  V.  Turn.  Falls  Co.,  313 

Comly  V.  Hillegass,  645 

Commercial  Bank  v.  Buckner,         120 

V.  Cliambers,      252, 

259,  282,  679 

V.  Foster,  401 

V.Nolan,  116 

Oommins  v.  Scott,  482 

Commissioners  v.  Chase,  623 

V.  Gaines,  612 

V.  Potts,  259 

V.  State,  525 

of  Excise  V.  Burtis,   71 

Commonwealth  v.  Alger,  29,  44 

V.  B.  &  A.  E.  E. 

Co.,  592 

V.  Baldwin,  227 

v.Balph,  212,215,718, 
736 
v.  Bank,  31 

V.  Barber,  585 

V.  Beatty,  683 

V.  Bennett,  246 

V.  Belts,  134,  214 

V.  Betz,  16 

V.  Bowles,  481 

V.  Bryan,  107 

V.  Buckingham,       187 
V.  Butler,        247,  248, 
744,  748,  749 
V.  Callen,  749 

V.  Cambridge,  44 

V.  Canal  Co.,   336,  497 
V.  Chambre,  543 

V.  Churchill,      12,  678 
V.Clark,  422,  711,714, 
721,  722,  741,  755 
V.  Cluley,  672 

V.  Coleman's  Ad- 
ministrator, 242 
V.  Commiss'rs,        267 
V.  Conyngham,  44,  49, 
591 
V.  Cooke,  342,  454,  455, 
586 
V.  Cooley,      ••271,  274 


Commonwealth  v.  Co.  Commr's,      704 
V.  Cromley,  271 

V.  Davis,  170,  471 

V.  Dean,  125 

V.  Downes,  734,  753 
V.  Duane,  44,  681,  682 
V.  DuHV.  877,  382 

V.  Erie  Ry.  Co.,  302 
V.  14  Hogs,  179 

V.  Fraim,  401 

V.  Gardner,  317 

V.  Garrigues,  230,  232, 

612 
V.  Getchell,  377,  678 
V.  Gedikoh,  20 

V.  Giltinau,  113,481 
V.  Golding,  51 

V.  Green,  234 

V.  Griffin,  .  56,  414 
V.  Haas,  585 

V.  Haines,  155 

V.  Hall,  387 

V.  Hartman,  752,  754 
V.  Hartnett,    513,  517, 

518 
V.  Hartranft,  723,  750 
V.  Harris,        196,  234, 

412 
V.  Hauck,  526 

V.  Hoover,  698 

V.  Hefiher,  196 

V.  Howe,  132,  463 

V.  Hutchinson,  227 
V.  Intox.  Liquors,  557 
V.  Jackson,  433 

V.  Johnson,  227 

V.  Judges,  301 

V.  Kelliher,    270,  320, 

321 
V.  Keniston,    453,  456 
V.  Kimball,  23,63,318, 
681,  682 
V.  Knapp,  174 

V.  Laws,  25 

V.  Leech,  98,  679,  744 
V.  Leftwich,  682 

V.  Leib,  722 

V.  Lentz.  329 

V.  Loring,       453,  466, 

467 
V.  Lovett,  698 

V.  McCarter,  672 

V.  McDonough,  681 
V.  Marshal],  80,  82, 
274,  395,  412,  427, 
437,  681,  682 
V.  Martin,  453,  456 
v.  Mason,  274,  281 
V.  Maxwell,  547 

v.  Meredith,  135 

V.  Messenger,  534 


XX 


TABLE   OF   CASES. 


CJommonwealth  v.  Miller,  508 

V.  Mitchell,  334 

V.  Mohn,  699 

V.  Montrose,  374 

V.  Mott,  377,  678 

V.  Nancrede,  172 

V.  N:iv.  Co.,  401 

V.  Norton,  286 

V.  O'Connell,  213 

V.  Pointer,  288 

V.  Pass.  Ry.  Co.,  496 
V.  Pattison,  723,  724 
V.  Patton,  735 

V.  Posey,  137 

V.  Polls,  45,  64 

V.  Quinter,  154 

V.   U.    R.   Co.    (3 

Cush.),  232 

V.  R.  R.  Co.   (27 
Pa.  St.),       114,224, 
225,  496 
V.  R.  R.  Co.  (53 

Pa.),  259 

V.  R.  R.  Co.  (104 

Pa.),  515 

V.    R.   R.   Co.    (2 

Pears.),  497 

V.    Ry.    Co.     (98 

Pa.),  282 

V.  Rainey,  531 

V.  Reiter,  661 

V.  Rol)biDs,      667,  675 

V.  Shade,  22 

V.  Shopp,        8,  29,  77, 

152,  683 

V.  Slifer,         49,  74,  75 

V.  Stnith,  242 

V.  Snyder,  100 

V.  Springfield,  706 

V.  Siand.  Oil  Co.,   235, 

456,  457,  479, 

683,  688 

V.  Sylvester,       61,  472 

V.  Wei  her,  191 

V.  Wells,  132,463,469 

V.  Welsh,  682 

V.  Woelper,  245 

V.  Worcester,  149 

Condon  v.  Barr,  178 

V.  Walker,  644 

Conger  v.  Barker,  531 

Conklin  v.  Conway,  189 

V.  Marshalltown,  551 

Conkling  v.  Underhill,  192 

Conley  v.  Calhoun  Co.,     298,  308,  702 

V.  Sims,  648 

Conn.,  &c.,  Ins.  Co.  v.  Albert,  76 

G)nner  v,  Exp.  Co.,  281,  282 

Connors  V.  iron  Co.,  275 

Conoland  v.  Leyland,  373 

Conover  v.  Uobart;  191 


Conro  V.  Iron  Co.,  606 
Conserv.  Thames  v.  Hall,  298 
Conslanline  v.  Constantine,  251 
Constitution,  The,  240 
Cont.  Impr.  Co.  v.  Phelps,  745 
Contested  El'n  Danphin  Co.,  200 
Converse  v.  Burrows,  143 
V.  United  Slates,  60 
Conwell  V.  Pumphrey,  191 
Conynghain  Sch.  Dist.  v.  Colum- 
bia, 229 
Cook  V.  Com'rs,  3)2 
V.  Fed.  Life  Ass'n,  721 
V.  Hamilton  Co.,  591 
V.  Loveiand,  606 
V.  Moore,  547 
V.  W'ard,  605 
Cooke  V.  Lindsay,  196 
Cooley  V.  Barcroft,  195 
Coolidge  V.  Williams,  336 
Coomber  v.  Berks,  74 
Coombs  V.  Emery,  629 
Coon  V.  Rigiien,  484 
Cooper  V.  Galbraith,  222' 
V.  ILibbuck,  15 
V.  Shaver,  50,  145 
V.  Simmons,  185 
V.  Or.  S.  &  L.  Ass'n,  729,  750 
V.  Wandsworth  B'd,  603 
V.  Wliitiingham,  662 
V.  Wolley,  347 
Coosa  River  St.  Co.  v.  Barclay,       389 
Cope  V.  Doherty,    52,   234,   243,  244, 

514 

V.  Rowlands,  649,  651 

V.  Thames,  &c.,  Co.,  614 

Copeland,  Exp  ,  62.  530 

Copeman  v.  Gallant,  83,  86 

Copland  v.  Davis,  82 

V.  Powell,  579 

Corbet's  Case,  438 

Corbet  v.  Haigh,  337 

Corbett  v.  Bradley,  608,  612 

V.  Nutt,  144 

Cordell  v.  State,  693 

Core  V.  James,  47,  140 

Cork,  &c.,  R.  Co.,  Re,  642 

V,  Goode,  567 

Corley  v.  Berry,  189 

Corn  Exch.  v.  Babcock,  175 

Cornell  v.  Hay,  191 

V.  Moulton,  547 

Cornhill  v.  Hudson,  385,  536 

Cornish  v.  Hocking,  387 

Cornwall  v.  Todd,  479 

M.  Co.  V.  Bennett,  615 

Cornwallis,  Re  Earl,  372 

Cords  V.  Kent  Waterworks,  147,  269 

Corton  V.  Ball,  104 

Corwin  v.  Comptr.  Gen.,  752 

V.  R.  R.  Co.,  295 


TABLE   OF   CASES. 


XXI 


Costa  Rica  v.  Erlanger,  387 

Costif^in  V.  Bond,  732 

Costin  V.  Washington,  362,  3ti4 

Coiton  V.  James,  562 

Planter,  The,  702 

Cota  V.  Ross,  513,  515 

Couch  V.  Steel.  662,  667,  669,  670,  672, 

675 
Coulbert  v.  Troke,  553 

CouMce  V.  Persons  Unknown,  97 

County  Auditors,  lie  Report  of,      204, 

207 

County  Seat  of  Linn  Co.,  67 

Courtauld  v.  Legh,  540 

Couricen's  Case,  119 

Cover  V.  Black,  99 

Coverdale  v.  Charlton,  164,  519 

Covington  v.  East  St.  Louis,    298,  308 

V.  McNickle,         45,  48,  82 

&c..  Co.  V.  Shepherd,      222 

Drawbr.  Co.v.Sheplierd,707 

Cowley  V.  Eyas,  276 

Cowell  V.  Cliambers,  524 

Cowen,  Exp.,  203 

Coxe  V.  Martin,  97 

Cox's  Trusts,  Re,  572 

Cox  head  v.  Muliis,  11 

Coxtun  V.  Dolan,  533,  583,  584 

Coy  V.  Coy,  332 

Cracknel  1  v.  Thelford,  597 

Craig  V.  Kline,  604,713 

V.  People,  101 

Crake  v.  Powell,  418 

Cramer  v.  Hanaford,  178 

V.  Lepper,  191 

Crandall  v.  Bryan,  99 

Crane  v.  Powell,  4S2 

V.  Reeder,  288,  289 

Craps  V.  Brown,  713 

Crawford  v.  Childress,  212 

V.  Spooner,  7 

Co.  V.  Meadville,  149 

V.  Nash,  714 

Crawford vilie,  &c.,  Co.  v.  Fletcher,    36 

Crawley  v.  Phillips,  158 

Creed  v.  Stevens,  192 

Creekmore  v.  Chitwood,  644 

Crepps  V.  Durden,  341 

Crespigny  v.  Wittenoon,  82,  566 

Cressey  v.  Parks,  551,  552 

Crisp  V.  Bunbury,  215 

Crocker  v.  Bellangee,  361,  362 

V.  Crane,  401 

Crofts  V.  Haldane,  165 

Cromelien  v.  Brink,  545,  547,  548,  549 

Crone  v.  State,  45 

Cronise  v.  Cronise,    714,  718,  727,  743 

Crooke's  Case,  224 

Crosby  v.  Bennett,  216,  665 

V.  Brown,  480 

V.  Hawthorn,  453 


Crosby  V.  Patch,  558 

Croskey  v.  Manuf'g  Co.,  541 

Crossw el  1  V.  Crane,  531 

Crouch  V.  Hayes,  286 

Crow  V.  Ramsey,  237 

Dog,  Exp.,  62,  63,  281,  334 

Orowell  V.  Van  Bebber,  174,  178 

Crowley  v.  State,  248 

Crowther's  Case,  660 

Croydon    Ciuard's    v.    Reigate 

Guard's,  120 

Criiger  v.  Cruger,  129,  697 

Cucklield  B'd,  iJe,  224,  303,  310 

Cull  V.  Austin,  4 

Cullen  V.  Trimble,  218 

Cullerton  v.  Mead,  142 

Cullins  V.  Min'g  Co.,  131 

Culver  V.  Wilbern,  I'Jl 

Culverson  v.  Mellon,  17 

Cumberland  v.  Copeland,         268,  295 

V.  Magruder,       259,  3i)5, 

310 

Co.  V.  Bovd,  35,  41 

V.  Trickett,  50 

&c.,   R.    R.   Co.    V. 

Rhnadarmer,  172 

Cuming  v.  Toms,  140 

Camming  v.  Bedborough,  662 

V.  Fryer,  458,  459 

Curaraings  v.  Akron  Cement,  &c., 

Co.,  78 

Cummins  v.  Wire,  191 

Cumru  Tp.  v.  Poor  Dir's,  21,  298,  299 

Cunard  v.  Hyde,  646 

Ciindell  V.  Dawson,  648 

Cunningham's  App.,  396,  496 

Cunningham  v.  Canney,  169 

V.  Cassidy,  685 

Curlewis  v.  Mornington,  444,  500 

Curran  v.  Arkansas,  509 

V.  Shattuck,  475 

Currier,  Re,  701 

V.  R.  R.  Co.,  496,  597 

Curry  v.  Edensor,  479 

Curtis  V.  Embery,  528 

V.  Gill,  267 

V.Martin,  112 

Cusack  V.  While,  526 

Cushing  V.  Dupuy,  230 

V.  Worrick,  77,  581 

Cusic  V.  Doujrlas,  741,  742 

Custer  Co.  v.  Yellowstone  Co.,  212.  218 

Custodes  V.  Jinks,  155 

Cutler  V.  Howard,  427,  430 

Cybele,  The,  119 

Czech  V.  Gen.  St.  Nav.  Co.,  347 


D. 


D.  H.  &  W.  R.  R.  Co.  V.  Com'th,   224 


Kxn 


TABLE  OP  CASES. 


D.  &  L.  Plank  Road  v.  Allen 

269 

Dawes  v.  Painter, 

454, 

462 

D.  A:  S.  Can.  Nav.  Co.  v.  Sansom, 

664 

V.  Rodier, 

284 

Dade  v.  Madison, 

358 

Dawson's  A  pp., 

616 

Daggett  V.  State, 

198, 

453 

Dawson,  Exp.,                   371, 

377, 

388 

Daily  V.  Burke, 

97 

V.  Fitzgerald, 

211 

V.  Swope,         711,712, 

731, 

747 

V.  Midland  R.  Co., 

125, 

137 

Dale's  Case,                      303, 

ol3. 

607 

V.  Shirley,       ^ 

18 

Dale,  Ee, 

617 

Day  V.  Brownrigg, 

163 

V.  Irwin, 

610, 

730 

V.  Munson, 

608 

D'Alinaine  v.  Boosey, 

330 

V.  Savadge, 

449 

Dame's  A  pp.. 

11, 

487 

V.  Savay, 

24  f) 

Danehn,  The, 

112 

V.  Simpson, 

194 

572 

Danfortli  V.  Smith, 

687 

Deakin  v.  Deakin, 

109 

Daniel  v.  Janes, 

162, 

185 

Dean  of  York's  Case, 

41 

Daniels  v.  Clegg, 

517 

Matter  of, 

43 

V.  Com'th, 

62, 

401 

Exp., 

547 

Dannebrog,  The, 

664 

V.  Bennett, 

492 

Danville,  <ic.,  Co.,  v.  State, 

707 

V.  Green, 

266 

R.  R.  Co.  V.  Co 

m'th 

133 

V.  Mel  lard, 

690 

D'Apremont  v.  Berry, 

156 

V.  Reid, 

8 

D'Aquin's  Succ'n, 

134 

Dearborn  v.  Brooklyne, 

29 

584 

D'Arry  v.  TamarR.  Co., 

605 

Dearden  v.  Towiisend, 

491 

Dargan  v.  Davies, 

345 

De  Armas  v.  Major, 

474 

Darmsiattter  v.  Moloney, 

115, 

312 

De  Beauvoir  v.  Welch, 

423 

Darrenberger  v.  Haiipt, 

370 

De  Begnis  v.  Armistead, 

645 

Dartm.  Coll.  v.  Woodward, 

557 

713 

De  Bode  v.  R., 

231 

Dash  V.  Van  Kleeck,        362, 

367 

387 

Decell  V.  Lewenthal, 

650 

692 

Davenport  v.  Barnes, 

142 

Deck  v.  Deck, 

237 

V.  R. 

604 

Deddrick  v.  Wood, 

81 

Davey  v.  Turner, 

503 

Deere,  Ee, 

291 

Davidson  v.  Burnand, 

563 

De  Haven  v.  Bartholomew, 

476 

V.  Uill, 

92 

Deitz  V.  Beard, 

110 

112 

V.  Lanier, 

646 

Del.,  &c.,  R.  R.  Co.  v.  Burson,, 

476 

V.  McCandlish, 

440 

Delalield  v.  Colden, 

161 

V.  New  Orleans, 

604 

713 

Delaplane  v.  Crenshaw,       38 

,42, 

606, 

Davie  v.  Briggs, 

509 

608 

Davies  v.  Berwick, 

668 

De  Londo's  Case, 

665 

V.  Griffiths, 

297 

Delong  V.  R.  R.  Co., 

764 

V.  Harvey,             186, 

323 

470 

Deming  v.  State, 

634 

Daviess  v.  Fairbairn, 

269, 

275 

Den  V.  Helmes, 

706 

707 

Davis'  A  pp.. 

66 

V.  Robinson, 

685 

Case, 

29 

Denham  v.  Holemjfn, 

106 

Davis,  Exp., 

265 

491 

Denman  v.  McGuire, 

391 

v.  B'k, 

707 

Denn  v.  Diamond, 

478 

V.  Clark, 

713 

Dennis  v.  Thwailes, 

404 

V.  Curling, 

138 

V.  Tovell, 

165 

V.  Dodds, 

127 

Dennistown  v.  Potts, 

191 

V.  Garland, 

25 

Dent  V.  Allcroft, 

201 

V.  Marshall, 

213 

V.  Clayton, 

432 

V.  Minor, 

685 

V.  Hoibrook, 

382 

V.  R.  R.  Co., 

511 

V.  State, 

481 

V.  Ry.  Co., 

601 

Denlzel  v.  Waldie, 

384 

V.  J-ioliertson, 

509 

510 

DePauw  v.  New  Albany, 

292 

V.  Zimmerma-n, 

245 

Depaz  v.  Riez, 

52 

Davison  v.  Farmer, 

276 

Derby  v.  Bury  Comni'rs, 

205 

V.Gill, 

221 

De  Rosaz,  Re, 

37 

Daw   V.   Burlington,   &c.,  R.  R. 

Desban  v.  Pickett, 

54 

Co.. 

44 

Des  Moines  v.  Gilchrist, 

615 

Davy  V.  Morgan, 

480 

Desplain  v.  Crow, 

508 

Davys  v.  Douglas, 

561 

Detroit  v.  Detroit,  &c.,  Co., 

114 

Daw  V.  Metrop.  B'd,         269 

307 

313 

Develly  v.  Develly, 

174 

TABLE    OF    CASES. 


XXlll 


■Devonshire,  Tlie,  517 

(Duke)  V.  Barrow,  659 
Devoy  V.  New  Yurk,  268 

De  Vries  v.  Coiikliii,  175 

Dewart  v.  Purdy,  112,  363,  366 

Dewey  v.  Oarnpan,  18 

V.  Ceiitr.  Car.,  &e.,  Co.,  289 
V.  GoixleiKMigh,  174,  454 

Dewhiirst  v.  FieUleii,  68,  554 

DeVVinton  v.  lirecoii,  290 

DeWitt  V.  San  Francisco,  21 

DeWolf  V.  Kabaud,  222,  509 

Dews  V.  Riley,  538 

Diana,  The,  486 

Diblilee  &  (Jo's  Case,  29 

Dick's  App.,  143,  212,  556 

Dickenson  v.  McCarny,  476 

Dickinson,  Re.,  6U8 

V.  Dickinson,  282,  2.S3 

V.  N.  E.  R.  Co.,  106 

Diercks  v.  Kennedy,  107 

Diggle  V.  L.  &  B.  R  Co.,  614 

Dillingham  v.  Brown,  228 

Dimes  V.  G.  J.  Can.  Co.,  350 

Diminock  v.  Alienhy,  534 

Dimsdale  v.  Saddler's  Co.,  344 

Dingley  v.  Moor,  693 

Direct 'U.  S.  Cable  Co.  v.  Anglo- 

Amer.  Tel.  Co.,  33,  484 

Diss  V.  Aidrich,  488 

Distr.  of  Col.  V.  Wash'n  Market 

Co.,  38,  41 

District  Tp.,  &c  ,'v.  Dubuque,  277,  726 


Ditcher  v.  Denison, 

102 

Ditton's  Case, 

356 

Dix  V.  Van  VVyck, 

191 

Doane  v.  Clinton, 

116 

V.  Phillips, 

7 

Dobell  V.  Hutchinson, 

482 

Dobbins  v.  Bank, 

389 

692 

Dobinson  v.  Hawks, 

625 

Dobson  V.  Blackmore, 

674 

Dodds  V.  Shepherd, 

298 

Dodge  V.  Essex, 

216 

V.  Gridley, 

54 

Doe  V.  Avaline, 

450 

474 

V.  Sartle, 

155 

V.  Benyon, 

37 

V.  Bold, 

368 

V.  Brandling, 

83 

V.  Bridges, 

662 

V.  Carew, 

31 

V.  Harvey, 

96 

V.  Holt, 

684 

V.  Jesson, 

96 

V.  Mofflitt, 

31 

V.  Nay  lor, 

678 

V.  OUey, 

47 

T.  Owens, 

500 

V.  Page, 

368 

V.  Roe, 

80 

684 

Doe  V.  Rugeley,  659 

V.  Snailh,  478 

V.  Walerton,  46,  147 

Doggett  V.  Cattarns,  127,  137,  578 

Doherty  v.  Allnian,  204 

V.  Madgett,  168 

Dolan  V.  Thomas,  287 

Dollar  Sav.  B'k  v.  U.  S.,  506 

Dolman  v.  Cook,  191 

Dolphin  V.  Laylon,  102 

Dominick  v.  Michael,  631 

Donne  v.  Martyr,  121 

Donolioo  V.  Stale,  468 

Donohue  v.  Ladd,  407 

Dooling  V.  Moore,  616 

Doraii,  Exp ,  678 

Dore  V.  Gray,  519 

Dorin  v.  Dorin,  106 

Dorris  v   Ervvin,  169 

Dcjuglierly  v.  Bethune,  523 

Douglas,  Matter  of,  612 

V.  Douglas,  531,  532 

V.  Gausiuan,  597 

Douglass  V.  Branch  B'k,  707 

V.  Chosen  Freeholders,         7 

V.  Commonwealth,    198,  334 

V.  Eyre,  412 

V.  Pac.  Mail,  &c.,  Co.,      116 

V.  Pike  Co.,  1 

Dousman  v.  O'Malley,  548 

Dow  V.  Young,  659 

Dowell  V.  State,  271 

Downey  v.  Ferry,  325 

Downing  v.  Baldwin,  143 

V.  Capel,  404 

V.  Ringer,  645 

Downs  v.  Huntington,  690 

Dowse,  The,  220 

Dozier  v.  Ellis,  13 

V.  Williams,  343 

Drake  v.  Flewellen,  707 

V.  State,  557 

Draper  v.  Emerson,  191,  509,  517 

V.  Glenfield,  155 

Drayton's  App.  242 

Died  Scott  v.  Sanford,  222 

Drennan  v.  People,  517 

Dresser  v.  Jones,  102 

Drew  v.  Commonwealth,  320 

Drover  v.  Beyer,  -     102 

Druggists'  Case,  346 

Drummond  v.  Drummond,  41,  86 

Druse  v.  Horter,  218 

Dryfus  v.  Bridges,  6,  556,  609,  612,  617 

Duck  v.  Addington,  54 

Diickham  v.  Smith,  369 

Dudgeon  v.  Pembroke,  646 

Dudley,  Re,  590 

V.  May  hew,  216 

V.  Reynolds,  7,  8,  12 

Can.  Co.  V.  Grazebrook,    494 


XXIV 


TABU-:    OF    CASES. 


DiiSy  V.  Ogden,  544 

Dugan  V.  Bridge  Co.,  2o5,  495 

V.  Gittings,  54 

Diiignan  v.  Walker,  553 

Duke  V.  Nav.  Co.,  445,  624 

V.  Thompson,  228 

Dumfries,  The,  387 

Dunbar  v.  Koxburgh,  502,  504 

Duncan  v.  Bell,  544 

V.  Commonwealth,  341 

V.  Sc.  N.  E.  R.  Co.,  299 

V.  Shenk,  623 

V.  Tindall,  530 

V.  Walker,  107 

Diincombe  v.  Prindle,  246 

D.indulk  R.  Co.  v.  Tapster,  662 

Dundas  v.  Diitens,  120 

Dunham  v.  Sage,  279 

V.  Wright,  615 

Dunlap  V.  Commonwealtli,  302 

Dimn  V.  Birmingh.  Canal  Co.,         597 

Danston  v.  Palerson,  122 

Dupre  V.  McCriKht,  034,  655 

Duquesne  Sav.  B'k's  Appeal,  337 

Di  I  ramus  v.  Harrison,  515 

Durant  v.  Withers,  200 

Diirliarn  v.  Daniels,  707 

Dnrr  v.  Commonwealth,  678 

Dutton  V.  Atkin.s,  356 

V.  Aurora,  305,  310 

Dyer  v.  Best,  502 

V.  Covington,  298 

V.  State,  701 

Dyson  v  L.  &  N.  W.  R.  Co.,  491 


B. 


E.  C.  R.  Co.  V.  Marriage,  88 

E.  I.  Co.  V.  Paul,  401,  632 

Eakin  v.  Ranb,  719 

Earl  of  Auckland,  The,  493 

Earle  v.  Rowcroft,  187 

Earlpy's  Appeal,  170,  735,  757 

Early's  Case,  206 

Early  v.  Homans,  545 

East  V.  Pell,  596 

Angl.  R.  Co.  V.  E.  C.  R.  Co.,  627 

f    Arcliip.  Co.  V.  R.,  556 

Gloncestersliire     R.  Co.    v. 

Bartholomew,  163,  357 
London    R.    Co.    v.  White- 
church,  70,  407 
Lond.  Water  Works  Co.  v. 
Mile  End,  571 
Eastman  v.  C-iiicago,  130 
V.  McAlpin,  74,  82 
East  Un.  Tp.  v.  Ryan,  488 
Eastwood  V.  Mel  lor,  578 
V.  Miller,  470 
Eaton  V.  Basker,  626 


Ebbs  V.  Boulnois, 

Eby's  Appeal, 

Eccles.  Comm'rs  v.  N.  E.  R. 

Persons,  Case  of, 
Echols  V.  State, 
Eckert  v.  Renter, 


75, 
Co., 


403' 
583 
13 
230 
594 
178 


Eckloff  V.  Distr.  of  Col.,  207,  259,  260 

Eddington  v.  Borman,  299 

Eddlestone  v.  Barnes,  323 

Edgar  v.  Greer,  259 

Edge  V.  Commonwealth,  661,  666 

Edger  v.  Co.  Comm'rs,  43 

Edinb.  R.  R.  Co.  v.  Wanchope,         42 

Tramways  Co.  v.  Torbain,      33 

Edmundson  v.  R.  R.  Co.,  731,  732,  756 

V.  Wragg,    364,  547,  551, 

552 

Edrich's  Case,  11 

Edson  V.  Hayden,  573 

Edward  v.  Darby,  505 

V.  Trevellick,  179 

Edwards'  Appeal,  238 

Edwards  v.  Aber.  Ins.  Co.,  211 

V.  Dick,  163,  358 

V.  Edwards,  195,  370, 374, 447 

V.  Hall,  201 

V.  Pope,  80 

V.  R.,  544 

V.  Ro«s,  334 

V.  Rusholme,  79,  86 

Ege  V.  Commonwealth,  54,  57 

Egerton  v.  3d  Mnnic'y,  52 

Eggington  v.  Lichfield,  550 

p:gvpt  Str.,  301 

Eit'el  V.  State,  735 

Elmendorf  v.  Taylor,  509 

Elam  V.  Raw.son,  452 

Elder  v.  Bemis,  661 

V.  Bradley  476 

Election  Cases,  533,  628 

Electro-M.,  &c.,  Co.  v.  Van  Aukeu,  48 


Eliot  V.  Himrod,  64,  486,  537 

Elizabeth,  The,  54 

V.  Mill,  363 

Elkins  V.  Parkhurst,  644 

Ella  Clark,  The,  588 

Ellerton,  Exp.,  295 

Elleson  v.  Mobile,  «%c.,  E.  R.  Co.,     44 

Ellingham  v.  Mount,  694 

Elliot  V.  Richardson,  645 

Elliott  V.  Chiipman,  616 

V.  Lisbon,  138 

V.  Lochnane,  262,  292 

V.  Majendie,  462 

V.  Swartwout,  112 

V.  Wood,  639 

Ellis,  Exp.,  344,  400 

V.  Batts,  298 

V.  Kellv,  185 

V.  Ins.  Co.,  362 

V.  M'Cormick,  454 


TABLE    OF    CASES. 


Ellis  V.  Milw.  City  R.  Co.,  325 

V.  Miirrav,  579,  581 

V.  Paijie,'  272,  537 

V.  Wliite,  213 

V.  Wliiilock,  459 

Ellsworth  V.  Mitchell,  644 

Elmondortf  v.  Carmichael,  525 

Elrod  V.  Gilliland,  275 

Elston  V.  Braddick,  371 

V.  Rose,  66 

Elton  V.  Geissert,      712,  719,  723,  726 

Elwell  V.  Chamberlain,  192 

V.  Holton,  265,  398 

V.  Thompson,  263,  300 

Ely  (Dean  of)  v.  Bliss,  282,  511 

V.  Cash,  282 

Emanuel  v.  Constable,  80,  86 

Emerick  v.  Harris,  736,  753 

Emerson  v.  Commonwealth,     465,  494 

V.  Newfoundland,  603 

Emily,  The,  352 

Emmert  v.  Hays,  99 

Empire  City  B'k,  Re,  619 

Emporia  v.  Norton,  273,  695 

Encking  v.  Simmons,  7,  24 

Engel  V.  State,  100 

Engelking  v.  Von  Wamel,  5,  101,  568 

England  v.  Organ,  &c.,  Co.,  131 

Engleman  v.  State,  543 

English  V.  Ozburn,  548 

V.  Williamson,  547,  552 

Englishman,  The,  344 

Eiinis  V.  Crump,  532 

EnniskiUen  Guardians  v.  Hilliard,  117 

Enos  V.  Buckley,  279 

Ensign  v.  Barse,  713 

Enterprise,  The,  451,  456,  702 

Epps  V.  Epps,  257 

Erichsen  v.  Last,  242 

Ericsson  v.  Brown,  132 

Erie  v.  Boota,  281,  282,  296 

Co.  V.  Com'rs  of  Water  W'ks,  24, 

226 

&c.,  R.  R.  Co.  V.  Casey,       80,  87 

Ry.  Co.  V.  Com'th,  497 

Erwin  v.  Moore,  281,  401 

Eshelman's  App.,      109,  440,  442,  447 

Eskridge  v.  McGruder,  54 

V.  State,  248 

Eslava  v.  Elmore,  446 

Essley  v.  Sloan,  191 

Esterly's  App  ,  164,  174,  487 

Etherington  v.  Wilson,  201 

Evans'  Case,  69 

Evans  v.  Erie  Co,,  229 

V.  Jones,  25 

V.  Myers,  507 

V.  Rees,  297,  482 

V.  Ross,  515 

V.  Stevens,  96,  580 

V.  Summerlein,  615 


Evans  v.  Phillippi,  712 

v.  Williams,  370,  372 

Evansvilie  v.  Bayard,  269 

Evatt  v.  Hunt,  566 

Everard  v.  Kendall,  220 

Everett  v.  Wells,  4,  23 

Evergreens,  Re  The,  282 

Kversfield  v.  Mid.  S.  R.  Co.,  495 

Ewart  V.  Williams,  43 

Ewell  V.  Daggs,  685 

Ewer  V.  Coxe,  614 

Ewing  V.  St.  Louis,  217 

Excels.  Man'g  Co.  v.  Keyser,  389 

Petr.  Co.  V.  Embury,  259,  271 
Exch.  B'k  V.  Ford,  "  99 

Explorer,  The,  244 

Eyre  v.  Waller,  68 

Eyston  V.  Studd,  36,  180 

Ezekiel  v.  Dixon,  10,  36,  54 


F. 

F.  and  M.  B'k  v.  Smith, 
Factors',  &c.,  Ins.  Co.  v.  New  Har- 


247 


bor  Protect' n  Co., 

118 

Fairchild  v.  Gwynne, 

38 

Falconer  y.  Robinson, 

262 

Fall  V.  Hazelrigg, 

517 

Fallon's  App  , 

193,  202 

Fanny  Carvill,  The, 

344 

Farm,  and  Mech.  B'k  v.  Kimmel,  191 

Farley  v.  Bon  ham. 

41,  42 

V.  Bryant, 

85 

V.  De  Wat  res. 

268 

Farman  v.  Brooks, 

446 

Farmer  v.  Fletcher, 

508 

V.  People, 

692 

Farmers'  B'k  v.  Hale,      255, 

354,  401 

Farnum  v.  Canal  Corp., 

234 

Farr  v.  Brackett, 

271 

Farrar  v.  Barton, 

644 

Farrell  v.  Tomlinson, 

13 

Foundry  v.  Dart, 

7,  146 

Fauntleroy  v.  Hannibal, 

706 

Favers  v.  Glass, 

4,  101 

Faw  V.  Roberdeau, 

106 

Feagin  v.  Comptroller, 

68 

Feather  v.  R., 

506,  556 

Feemster  v.  Ringo, 

369,  707 

Feikner  v.  Tighe, 

195 

Fell  V.  Bnrchett, 

35 

Fellowes  v.  Clay, 

83,  85 

Fellows  v.  Denniston, 

243 

Felt  V.  Felt, 

288 

Fenelon\s  Pet'n, 

683 

Fennell  v.  Bay  City,        713, 

715,  716 

V.  Ridler, 

471 

Fenns  v.  Say  re. 

191,  358 

Fenwick  v.  East  Lond.  R.  Co. 

104,  495 

V.  Schmaltz. 

568 

XXVI 


TABLE   OF   CASES. 


Ferguson,  In  re,  Fergusson,  Exp., 

Foley  V.  Comm'rs, 

29e 

138, 

511 

V.  Fletcher, 

453, 

471 

Fergusson  v.  Norman, 

652 

V.  Speir, 

657 

Fermoy's  (Ld.)  Claim  to  Vol 

e. 

501 

Folmei"'s  App., 

256 

Fiiielity,  &c.,  Co.'s  App. 

) 

132 

Folsom  V.  Clark, 

371 

Co.  V.  Scolt, 

20 

Foot  V.  Truro, 

623 

Fidler  v.  Ilersliey, 

143 

Forbes  v.  Eccle.s.  Com., 

157 

Field  V.  Dirkenson, 

106 

V.  Foot, 

106 

V.  (loldsby, 

SOS 

V.  Lee  Cons.  B'd, 

699 

V.  People, 

753 

V.  Marsh, 

192 

V.  U.  S., 

167 

V.  Smith, 

402 

Fielding  v.  Rhyl, 

491 

Ford,  Ee, 

506 

Figi^  V.  Snook, 

100 

V.  Burch, 

62 

File  Sliaip'g  Co.  v.  Pnrsons 

102 

V.  Drew, 

122 

Files  V.  Fuller,          238 

239, 

6S8, 

6S9 

V.  F..r,l, 

531, 

536 

Fintiley  v.  Pittsburgh, 

334 

V.  WMrt, 

122 

Fiuk  V.  O'Neil, 

230, 

232 

V.  Kettle, 

14 

350 

Finney  v.  Ackerman, 

363 

V.  Pye, 

122 

V.  Somerville, 

13t) 

Forqueran  v.  Donnally, 

62,  63 

282 

Firebrace  v.  Firebrace, 

234 

Forrest  v.  Hart, 

189 

Firmstone  v.  Mack, 

213, 

«34, 

638 

Forsdike  v.  Stone, 

543 

First  iMass.  Turnp.  v.  F 

slier, 

13 

Forster  v.  F^orster, 

395 

Nat.  Bk's  App, 

170 

V.  Taylor, 

648 

Piesb.  Cii'cb.  Ee, 

24 

Forsyth  v.  Marbury, 

363 

Fisher  v.  ?.right. 

6 

V.  Wheeling, 

229 

V.  Connard, 

111, 

581 

582 

Fosdick  V.  Perrysburgh, 

44, 

306. 

310, 

V.  Deering, 

517 

407 

693 

V.  Farley, 

363 

Foster's  Case, 

267 

2S0 

V.  jilervey, 

390 

Foster  v.  Collner, 

109 

V.  H'lricon,  &c., 

Co., 

116 

V.  Com'ih,       413 

415 

,661 

669 

V.  Howard, 

125 

V.  Blount, 

574 

V.  Lord, 

647 

V.  G.  \V.  R.  Co., 

154 

V.  Trovin, 

733 

V.  Me.lfield, 

682 

Fishmongers'  Co.  v.  Dlmsdal 

e, 

478 

V.  Neilson, 

243 

Fiske  V.  Briggs, 

3S5 

V.  Oxf.,  &c.,  R.  C 

0., 

653 

Filch  T.  Comm'rs, 

214 

V.  Pritchard, 

257 

Fitze  V.  State, 

682 

Fotherby  v.  Metr.  R.  Cf 

., 

668 

Fitzgerald  v.  Charapneys, 

299 

303 

Fonke  v.  Fleming, 

261 

Ee, 

727 

Foulger  V.  Stead  man. 

186 

Fitzpatrick  v.  Gibhart, 

7 

Foulke  V.  R.  R.  Co., 

362 

V.  Ktlly, 

47 

536 

Fowler  v.  Kendall, 

120 

Flaherty  v.  Thomas, 

318 

V.  Lindsey, 

214 

Flanders  v.  Merrimack, 

64 

V.  Padgett, 

412 

Flash  V.  Conn, 

509 

V.  Pirkins,    282, 

420, 

422, 

427, 

Fleming  v.  Burgin, 

104 

432 

V.  Self; 

161 

V.  Scully,      556, 

557, 

643, 

652 

Fletcher  v.  Caltbrop, 

218 

453 

V.  State, 

80 

V   Hudson, 

456 

V.  Tuttle, 

582 

V.  Peck, 

376 

382 

727 

Fox's  App.,        101,118, 

604 

605 

713 

V.  Sondes, 

454 

581 

Fox,  la  re. 

116 

232 

Flint,  &c.,  Co.  V.  Woodhnll, 

9 

V.  New  Orleans, 

142 

Flintham  v.  Forsythe, 

161 

V.  Sloo, 

142 

Flint  River,  &c.,  Co.  v. 

Foster, 

737 

V.  Wall  is, 

616 

Flory  V.  ^Vilson, 

616 

Foxon  V.  Gascoigne, 

18 

Flower  V.  Lord  Leyton, 

345 

Frailey  v.  Sieinmetz, 

140 

V.  Lloyd, 

488 

Francis  v.  Dodsworth, 

102 

Floyd  V.  Turner, 

217 

Franconia,  The, 

55 

540 

Floyer  v.  Edwards, 

193 

Frank  v.  Siegel, 

169 

Fiynn  v.  Abbott, 

75 

P'rankf.,  &c.,  Ry.  Co.  v. 

Phil 

adel- 

Fogg  V.  Holcomb, 

384 

phia. 

490 

Foley  V.  Bourg, 

351 

Turnp.  Co. 

v.Com'th 

,541 

TABLE   OF    CASES. 


XXVll 


Frankf.,  &c.,Turnp.  Co.  v.  R.  R.  Co.,  597 

Fraiiklaiul,  Ee,  97,  596 

Franklin  V.  B'k  of  Engl.,  445 

V.  Franklin,  142 

V.  HoKlen,  551 

Co.  V.  Slate,  757 

Glass  Co.  V.  White,  615 

Franks  Oil  Co.  v.  McCleary,  664 

Fiaser  v.  Hill,  646 

Frazer  v.  Clifford,  202 

Frec'king  v.  Rolland,  17S,  592 

Frederick  v.  Goshorn,      303,  310,  311 

Fredericks  v.  Canal  Co.,  333 

V.  Howie,  572 

Free  Grammar  iSch.,  Jn  re,  155 

Free  Press  Ass'n  v.  Nichols,  608,  620 

Free  v.  Burgoyne,  74 

Freeman,  Re,  115 

V.  Appleyard,  562 

V.  Brittin,  lV/2 

V.  Moyes,  388 

V.  Read,  207,  547,  635 

V.  Tranch,  25 

Freemantle  v.  L.  AN.  W.  R.  Co.,  597 

Freese  v.  Tripp,  517 

Freestone,  Exp.,  561 

Freetliy  v.  Freethy,  33 

Freke  V.  Carbery,  241 

Fremington  iScli.,  Re,  604 

French  v.  Cowan,  501 

V.  Teschemaker,  246,  247 

Frend  v.  Dennet,  615,  626 

Fricke  v.  Poole,  453 

Friedeborn  v.  Com'th,  oil 

Frink  V.  Pond,  513 

Fritz  V.  Hobson,  303 

Frohock  v.  Pattee,  459 

Frost  V.  Fay,  334 

Fry's  Elect'n  Case,   123,  719,  724,  730 

Fry  V.  Bidwell,  546 

V.   Booth,  624 

Frye  V.  R.  R.  Co.,  10,11 

Frvebiirg  Canal  v.  Frye,  216 

Ft"  Smith  V.  McKibbin,  229 

Fnenies  v.  Montes,  160 

Fuliiluim  V.  Roberts,  297 

Fuller  V.  Hutchings,  358 

V.  Redman,  26,  678 

Fullerton  v.  Bank,  593 

V.  McCiirdy,  191 

V.  Spring,  694 

Fnlton  B'k  v.  Beach,  446 

Fnrey  v.  Gravesend,  400,  433 

Furlong  V.  State,  228,231 

Furman  v.  New  York,  88 

V.  Nickol,  307 

V.  Nickols,  281 

Furnivall  v.  Coombes,  254 

Fusilier,  The,  101,  119 


G. 

Gage  V.  Bank,  99 

V.  Currier,  298,  308 

V.Smith,  518 

Gaines  v.  Hot  Spring  Co.,  229 

Gale  V.  Laurie,  485,  536 

V.  Mead,  677 

V.  Myers,  99 

Galena  v.  Amy,  429,  431 

Gallagher  v.  Neal,  451 

Gal  legos  v.  Pino,  51 

Gallini  v.  Laborie,  645 

Galloway  v.  London,  497 

V.  Maries,  578 

Gallt  V.  Finch,  549 

Galuslia  V.  Cobleigli,  106 

Gambart  v.  Ball,  148,  464 

Garhracht  v.  Com'l^i,  241 

Garby  v.  Harris,  402 

Gardiner  v.  Collins,  609 

Gardner  v.  Collector,  43 

V.  Lucas,  369,  387 

V.  Sharp,  222 

V.  Whitford,  268,  309 

Garland,  Matter  of,  376,  382 

V.  Scott,  476 

Garnett  v.  Bradley,  267,  268,  299 

Garrett  v.  P5eaumont,  363 

V.  R.  R.  Co.,  357 

V.  Wiggins,  363 

Garrigus  v.  Com'rs,  74,  491,  541 

Garvey  v.  Hartford,  717 

Gas  Co.  V.  Wheeling,  48 

Gashwiiler  v.  Willis,  60,6 

Gaskell  v.  King,  657 

Gaslight  Co.  v.  Turner,  647 

Gasioa  V.  Merriam,  273,  291,  363,  365, 

531,  534,  536 

Gates  V.  M'Daniel,  593 

V.  Osborne,  683 

V.  Salmon,  29,  45 

Gattv  V.  Frv,  337 

(iaudet  V.  Brown,  30,  220 

Gauntlet,  The,  454 

Gearhart  v.  Dixon,  661 

Gearns  v.  Baker,  598 

Geddes  v.  Brown,  2,  185 

Geddis  V.  Bann  Com.,  597,  598 

Gee  V.  Thompson,  252 

Geere  v.  Mare,  647 

Gei^en  v.  Heiderich,  262,  279 

Generous,  The,  628 

Genkinger  v.  Commonwealth,  681 

Gen'l   St.  Nav.  Co.  v.  Brit.,  &c., 

Co.,  535 

George  v.  B'd  of  Ed'n,  6,  401 

V.  Skeates,  259 

Georgia  Pen'y  Co.  v.  Nelms,  60 


XXVlll 


TABLE   OF   CASES. 


Georgia  R.  R.  Co.  v.  Kirkpatrick, 

272 

Goersen  v.  Commonwealth, 

734 

G.  E.  R.  Co.  V.  Wan  less, 

600 

Gohen  v.  R.  R.  Co., 

294 

Geriuania  v.  Slate, 

117 

Goillotel  v.  New  York, 

375 

German    Un.    B.  ci   L.   Ass' 

n   v. 

(ioldsmid  v.  Hampton, 

62, 

512 

.Sendmayer, 

625 

Goldson  V.  Buck, 

3U5 

Gerry  v.  Stoneham, 

363 

Gold  Str.,  Re, 

635 

Getehell  v.  Allen, 

642 

Gonder  v.  Estabrook, 

106, 

517 

Geter  v.  Comiu'rs, 

491 

Good  V.  Webb, 

548 

Gibbes  v.  Beaufort, 

212 

663 

Goodall  V.  People, 

764 

Gibbs  V.  Guilil, 

13 

Good  ell  V.  Jackson, 

474 

V.  Stead, 

543 

Goodenow  v.  Buttrick, 

271 

Gibbon  v.  Freely 

552 

Goodno  V.  Oslikosh,  265,  266, 

398, 

(i79 

Gibbons  v.  Brittennm, 

51 

252 

Goodrich  v.  Milwaukee, 

281 

V.  Cliainbers, 

358 

V.  Russel, 

68 

V.  Ogden, 

714 

Goodsell  V.  Boynton, 

701 

Giblett  V.  Hobson, 

197 

(ioodwin,  &c.,  Co.  v.  Darling 

381 

Gibson  v.  Belclier, 

411 

Goodyear  v.  Rimibaiigh, 

378 

V.  Chateau, 

227 

231 

Gordon  v.  Building  Ass'n, 

615 

V.  Holland, 

482 

V.  Howden, 

646 

V.  Jtniiy, 

174 

333 

V.  Jenniiigs, 

569 

V.  Preston, 

292 

V.  Montgomery, 

708 

V.  State, 

452 

V.  State, 

97 

Giddings  v.  Coxe, 

271 

V.  Wansey, 

616 

Gilbert  v.  Gaugar, 

194 

Gore  V.  Brazier,                7,  8, 

337 

448 

V.  Moose, 

194 

Gorely,  Exp., 

64 

536 

Gildart  v.  Gladstone, 

494 

Gorham  v.  Bish.  of  Exeter, 

38, 

503, 

Giles  V.  Giles, 

112 

303 

604 

V.  Grover, 

544 

V.  Linckett,         267, 

271 

311 

Gilkey  v.  Cook, 

351 

Gorman  v.  Hammond, 

317 

318 

Gill  V.  State, 

281 

Gorris  v.  Scott, 

675 

V.  Wells, 

392 

jrorton  V.  Champneys, 

458 

Gilleland  v.  Schuyler,      238, 

690 

691 

Goss  V.  Davis, 

635 

Gillespie  v.  Smith, 

548 

635 

Gossler  v.  Goodrich, 

266 

Gillette  v.  Hartford, 

498 

(joswiler's  Est., 

551 

552 

V.  Shark, 

281 

Gottman  v.  Shoemaker, 

631 

Gillian  v.  Moore, 

58 

Gough  v.  Da  vies, 

87 

Gillin  V.  Armstrong, 

200 

Gould  V.  Langdon, 

71 

Gilmer  v.  Lime  Pc, 

475 

v.  Sub  Distr., 

5G3 

Gilmore  v.  Sliuter, 

868 

V.  Wise, 

435 

515 

Gilroy  v.  Commonwealth, 

592 

Governor  v.  Howard, 

688 

689 

Giltner  v.  Gorham, 

183 

Gover's  Case, 

668 

Gird  V.  State, 

109 

Grace  v.  Bishop, 

120 

Girard,  &c.,  Co.  v.  Philad'a, 

96 

V.  Church, 

328 

Girdlestone  v.  Allen, 

420 

Graffins  v.  Commonwealth, 

661 

Giichell  V.  Kreidler, 

126 

Graham's  App., 

501 

Given  V.  Rogers, 

194 

Graiiam,  Exp.. 

6S5 

V.  Simpson, 

167 

V.  Commonwealth, 

123 

Glaholm  v.  Barker, 

680 

V.  Greenville, 

733 

Glaze  V.  R.  R.  Co., 

228 

V.  Ingleby, 

634 

637 

Glazier  v.  Merringer, 

200 

V.  Long, 

615 

Gleaves  v.  Marriner, 

623 

v.  O'Fallon, 

215 

Glidden  v.  Strupler, 

615 

,641 

v.  R.  R.  Co., 

4:v> 

Glossop  V.  Heston, 

673 

v.  Ry.  Co., 

6S6 

Glover  v.  Wilson,              227 

228 

,229 

v.  Van  Wyck, 

174 

Gloversville  B'k  v.  Peace, 

192 

Grant  v.  Ellis, 

283 

,511 

Gluck  V.  Cox, 

245 

V.  Hamilton, 

222 

Glyde  V.  Keister, 

597 

V.  Hickox, 

331 

500 

Godcharles  v.  Wigeman, 

507 

v.  Kemp, 

388 

Goddard,  Re, 

658 

v.  McLester, 

645 

V.  Boston, 

281 

Co.  V.  Sels, 

259 

V.  Gloninger, 

505 

Graver  v.  Fehr, 

134 

TABLE    OF    CASES. 


XXl'S 


Graves  v.  Ash  ford..  148, 

V.  Graves, 
V  Le""'. 
V.  State, 
Gray  v.  Brown, 

V.  Cookson,  314, 

V.  Larrimore, 
v.  Obear, 
V.  Pulleii, 
v.  K., 
Great  Charte  v.  Kennington, 

Centr.  Gas  Co.  v.  Clarke, 
East.  Ry.  Co.  v.  Goldsmid, 
North,  &c.,  Co.  v.  Edgehill, 
N.  R.  Co.  V.  Ivett, 
W.  R.  Co.  V.  Bailie, 
W.  R.  Co.  V.  Bishop, 
W.  R.  Co.  V.  R., 
W.  R.  Co.  V.  R.  Com., 
W.  Ry.  Co.  V.  Swindon,  &c., 
Ry.  Co.,  336,  582, 


259, 


48,  54, 
191, 


276,  313, 


Greeley  v.  Jacksonville, 
Greely  v.  Thompson, 
Greene,  Exp., 
Green  v.  Cheek, 

v.  Com'th, 

v.  Kemp, 

V.  Miller, 

v.  New  York, 

V.  R., 

V.  Tvler, 

V.  U.  S.,  224, 

V.  Wood,  31, 

Greencastle  Tp.  v.  Black,  714,  737, 
Greenheld  v.  Morrison, 
Green  how  v.  Parker, 
Greenway  v.  Hurd, 
Greenwood,  Exp., 

V.  Greenwood, 
v.  Hammersley, 
Greer  v.  State,  58,  266, 

Gregg  Tp.  v.  Jamison, 
Gregory's  Case, 
Gregson  v.  Potter, 
Greig  V.  Bendeno, 
Grenier  v.  Klein, 
Grenada  Co.  v.  Brogden, 
Gienfell  v.  Inland  Rev.  Com., 
Grey  v.  Bennett, 

V.  Mobile  Trade  Co., 
V.  Pearson, 
GrifBn's  Case, 
Griffin  v.  Carter, 

V.  Forrest, 

V.  Sanbornton, 

v.  State, 
Griffith  V.  Taylor,  404, 

Griffiths,  Exp , 

V.  Sears,  192,  194, 

Grill  V.  The  Gen.  Iron  Screw  Col- 
lier Co.,  61, 


464 
293 
37 
256 
191 
359 
349 
678 
599 
588 
152 
311 
632 
216 
638 
187 
461 
422 
489 

583 
262 
505 
697 

45 
295 
634 
4 
592 
472 
191 
232 
487 
738 
244 
470 
403 
408 
432 
657 
320 
108 
298 
614 

80 
517 
246 
241 
459 
686 
4 

51 

89 
544 
674 
681 
543 
200 
463 

189 


Grim  V.  Sell.  Distr.,  .       381,  382, 
Grimes,  Exp., 
Grimmett  v.  State, 
Grindlay  v.  Barker, 
GriswoJd  v.  All.  Dock  Co., 

V.  Gallo[), 
Grob  V.  Ciisliman, 
Grocers'  Co.  v.  Donne, 
Gross  v.  Fowler,  4, 

V.  Funk, 
Grosvenor  v.  Ry.  Co., 
Guard  v.  Rowan, 
Gue  V.  Kline, 
Gnerin  v.  Moore, 
Gulfaxe,  The, 
Gunnestad  v.  Price, 
Giinter  v.  Leckey, 
(juthrie  v.  Fisk, 
Gutierrez,  Exp., 
Guyman  v.  Burlingame, 
Gvvinner  v.  R.  R.  Co., 
Gwyn  V.  Hardwicke, 
Gwynn  v.  McCauley, 
Gwynne  v.  Burnell, 
Gye  V.  Felton, 
Gyger's  A  pp.. 

Est.,    77,106,111,581, 


H. 


30, 
174, 


7,  11,  443, 


.394 
136 
740 
606 
114 
703 

44 
598 
543 
192 
333 
363 
411 
380 
244 
220 
451 
596 
383 
194 
277 
502 

23 
627 
360 
104 
582 


Habergham  v.  Vincent, 

636 

Hack  V.  Lond.  Prov.  B'ld'g  Soc'y 

161 

Hacking  v.  Lee, 

491 

Hackley  v.  Spragiie, 

192 

Hadden  v.  Collector, 

8,  74,  75 

Hadfield's  Case, 

56 

Had  ley  v.  Perks, 

527 

565 

Hagenbuck  v.  Reed, 

29 

Hager  v.  Cleveland, 

357 

Hagerman  v.  B.  and  S. 

Ass'n 

, 

492 

Hagerstown  v.  Sehner, 

386 

Hahn  v.  Salmon, 

SO, 

459 

V.  U.  S., 

501, 

505 

517 

Haigh  V.  K;ive, 

445 

V.  Siieffield, 

470 

Hailes  v.  State, 

704 

Hakes  v.  Peck, 

515 

Halbert  v.  McCulIoch, 

99 

V.  Skyles, 

704 

Haldane  v.  Beaiiclerk, 

528 

Halderman's  App., 

75, 

172 

Halderman  v.  Young, 

157, 

394, 

539 

Hale  V.  Burton, 

477 

v.  Henderson, 

645 

V.  Lawrence, 

509 

Halev  V.  Petty, 

223, 

478 

488 

Hall,  Exp., 

4, 

101 

V.  Adams, 

179 

V.  Brown, 

707 

V.  Ernest, 

192 

XXX 


TABLE    OF    CASES. 


Hall  V.  Knox,  410 

V.  Maule,  2:i7 

V.  Miillin,  645 

V.  Nixon,                            491,  658 

V.  Pritchett,  102 

V.  State,  451 

V.  Siill.  R.  R.  Co.,  628 

V.  Superv'rs,  304 

V.  Wright,  627 

Halleit  V.  Nuvion,  642 

Halliswell  v.  Bridgewater,  254 

Halsey  v.  Hales,  105 

Haltiin  V.  Cove,  78 

Ham  V.  Boston  B'd  of  Police,  64,  2'  6 

V.  Sawyer,  507 

V.  State,  259 

V.  Steamboat,  216 

Hamilton  v.  Buxton,  252 

V.  Dallas,  242 

V.  The  R.  B.  Hamilton,  77 

Hamlet  v.  Taylor,  700 

Hamiyn  v.  Nesbit,  321 

Hammersmith  Rent  Charge,  Re,  605 

Ry.  Co.  V.  Brand, 


88, 
597 
77 
703 
189 


Hammock  v.  Loan  Co., 
Hammond  v.  Inloes, 
Hampden  v.  Walsh, 
Hampton  v.  Commonwealth,  658,  68.S, 

6S5 
V.  Erenzeller,  260,  545 

Hanchett  v.  Weber,  589 

Hancock  v.  Lablache,  27,  4:^2 

Co.  V.  B'k,  216,671 

Handley  v.  Cunningham,         547,  548 
Handy  v.  Hopkins,  593 

V.  R.  R.  Co.,  704 

Haney  v.  State,  436 

Hanev's  Trusts,  Re,  245 

Hankins  v.  Peoi)le,  451,  452,  511,  557 
Hannah  v,  Wliyman,  92 

Hannibal,  &,c.,  R.  R.  Co.  v.  Shack- 
le: t,  346,498 
Hannon  v.  Madden,  174 
Hapi)endii)g  v.  Dutch  Church,  609 
Harl)eck  v.  New  York,  263 
Harhert's  Case,  152 
Harden  v.  Hesketh,  283 
Hardin  v.  Tavlor,  227 
Harding  v.  People,  249,  367 
V.  Vandewater,  606 
Hardy  v.  Bern,  276 
V.  Hunt,  189 
V.  Ryle,  650 
Hardyman  v.  Whitaker,  339 
Harford's  Trust-,  493 
Hargreaves  v.  Diddams,  185 
Harington  v.  Rochester,  252 
Plarker  v.  Han.  &  St.  Jos.  Ry.  Co.,  217 
Harlan  v.  Sigler,  390 
Harlock  v.  Ashberry,                        200 


368, 

54, 
702, 


277, 


Harlock  v.  Jackson, 
Harned  v.  Gould, 
Harold  v.  State, 
H appending  v.  Haight, 
Harper's  Af)peal, 
Harper  v.  B'k, 
V.  Carr, 
V.  Taswell, 
V.  Young, 
Harrell  v.  Harrefl, 
Harriet,  The, 
Harrington  v.  Harrington, 
V.  Ramsey, 
V.  Smith, 
Harris'  Settled  Est., 
Harris  v.  Franconia, 
V.  Gest, 
V.  Haines, 
V.  Jenns, 
V.  Lester, 
V.  Townshend, 
V.  White, 
Harrisburg  v.  Sheck,  281, 303, 305, 
liariison's  Case, 
Harrison,  Exp., 

V.  Carter, 
V.  Conrtright, 
V.  L.  &  B.  R.  Co., 
V.  Ijeach, 
V.  Sager, 
V.  Smith, 
V.  Stickiiey, 
V.  Walker, 
Harrod  v.  Worship, 
Hart's  Appeal, 
Hart  V.  Herwig, 
V.  Kennedy, 
V.  Plum, 
V.  R.  R.  Co., 
V.  State, 
Hartf.  Bridge  Co.  v.  Ferry  Co.,  29, 
■     Ac,  R.  R.  Co.  V.  Kennedy, 
Hartley's  Ajipeal, 
Hartley  v.  Hartley, 
y.  Hooker, 
Hartman's  Appeal, 
Hartman  v.  Bechtel, 
V.  Munch, 
Hartnall  v.  Ryde  Com'rs, 
Hartnett  v.  Slate, 
Hartung  v.  People, 
Harvey  v.  Tyler, 

V.  Virginia, 
Haselline  v.  Hewitt, 
Haskell  V.  Jones, 
Hasluck  V.  Pedley, 
Hassen plug's  Appeal, 
Hastings,  Re, 

V.  Aiken, 
V.  Lane, 
Hatch  V.  Douglas, 


54, 


583, 


376, 


167, 


142, 


227 
284 
271 
42 
666 
160 
604 
439 
642 
51 
466 
703 
415 
23 
374 
240 
616 
348 
574 
542 
690 
697 
310 
555 
628 
563 
722 
406 
473 
517 
473 
346 
678 
472 
476 
241 
584 
619 
704 
381 
496 
664 
384 
271 
217 
487 
594 
126 
186 
103 
681 
362 
263 
539 
519 
369 
144 
291 
678 
363 
194 


TABLE    OF    CASES. 


XXXI 


Hat  field,  Road  in,  683 

Hathaway  v.  Johnson,  458 

Hattersley  v.  Earr,  491 

Hawes  V.  Pavelev,  213 

Hawkins  v.  Carrbll  Co.,    712,  717,  718 

V.  Gathercole,  36,  283 

Hayes  v.  Hanson,  54 

Hayman  v.  Flewker,  86 

V.  Pond,  120 

Haynes  v.  Jeiiks,  281 

Hayward  v.  Giflbrd,  482 

Haywood  v.  (iunn,  279 

Head  v.  Ins.  Co.,  557,  615 

Heald  v.  State,  681 

Healy  v.  Dettra,  429 

Heane  v.  Garton,  182 

Heard  v.  Heard,  701 

Heara  v.  Ervin,  174 

V.  State,  436 

Heaston  v.  R.  R.  Co.,  703 

Heaton  v.  Horner,  405 

Hebbert  v.  Piirchas,  40,  503 

Hebert,  Siicc'n  of,  45 

Hebnrn  v.  Warner,  170 

Hedwortli  v.  Jackson,  41 

Heebner  v.  Chave,  131 

Heelis  v.  Brown,  56 

Heeter  v.  Glasgow,  155 

Heine  v.  Appleton,  156 

Heiskell  V.  Baltimore,  173 

Helps  V.  Glenister,  6-11 

Hemstead  v.  Plioenix  Gas  Co.,  41 

Henchall  v.  Schmidiz,  390 

Henderson  v.  Beliew,  191 

V.  Bise,  463 

V.  Brown,  404 

V.  Maxwell,  614 

V.  Royal  Brit.  B'k,        624 

V.  Siierborne,  317,  456,  471 

V.  State,  364 

Hendrick's  App.,  728 

Hemlrickson  v.  Fries,  158 

Hendrix  v.  Reiman,  54 

Henlev,  Be,  227 

Henniker  v.  R.  R.  Co.,  216 

Henrette  v.  Booth,  69 

Henry  v.  Cjx-^on,  550 

V.  Morgan,  160 

V.  Newcastle  Trinity  House,  15 

V.  Stuart,  234 

V.  Thomas,  19 

V.  Tilson,  62,  351 

Henshaw  v.  Foster,  711,  714 

Hentz  V.  Jewell,  194 

Hepburn  v.  Griswold,  248,  428 

Herbert's  Case,  298 

Herbert  v.  Easton,  384 

V.  Sayer,  65 

Hering  v.  Chambers,  508 

Hermance,  Re,  572 

Hermann  v.  Seneschal,  404 


Herold  v.  State, 
Herron  v.  C'arson, 
Herschfield  v.  Clarke, 
Hersha  v.  Brenneman, 
Hershey  v.  Latham, 
Hersliizer  v.  Florence, 


510 
270,  271 

1-15 
438,  440,  447 

279 
370,  373 


Hersom's  Case,  213,  218,  521,  527 


Ileseltine  v.  Siggers, 
Hesketh  v.  Atherton, 
Hess  V.  Pegg, 
Hettrick  v.  Hettrick, 
Hewer  v.  Cox, 
Hewitt  V.  Price, 
Heydon's  Case, 
Hey  wood  v.  Shreeve, 
Hezekiah,  The, 
Hibbert  v.  Purchas, 
Hickernell  v.  Bank, 
Hickory  v.  Ellery, 

Tree  Road,  Be, 


Hicks,  Exp., 

V.  Jamison, 

Hickson  v.  Darlow, 

Hider  v.  Donell, 

Hiester  v.  Fortner, 

Higgs  V.  Schroeder, 

Higley  v.  Gilmer, 

Hildreth  v.  Gwindon, 
V.  Heath, 

Hilke  V.  Eisenbeis, 

Kill,  Exp., 

V.  Bowden, 

V.  Boyland, 

V.  Gaw, 

V.  Goodman, 

V.  Hall, 

V.  Lond.  &  Co.  Assur.  Co.,      430 

V.  Smith,  699 

V.  State,  700,  701 

V.  Williams,      342,  343,  435,  541 

V.  Wright,  235 

Hilliard  v.  Lenard,  383 

Hillman,  E.tp.,  102 

Hills  V.  Chicago,      712,  714,  715,  718, 
720,  759 


56-: 
605 

747,  74S 
133 
123 
4G3 
35,  135,  466 
178 
138 
697 
490 
701 

251,  275, 

686,  687 
551 
9,  22 

367,  369 

139 

99 

24 

548 

616 

234 

565 

96 

635 

623,  755 
592 
378 
293 


V.  Shepherd, 
Hind  V.  Artliur, 
Hinde  v.  Chorlton, 
Hinds  V.  Barton, 
nine's  App., 
Hines  v.  R.  R.  Co., 


188 

24 

16a 

597 

133 

74,  151,  432,  453, 

455,  456 

Hinsdale  v.  Earned,  216 

rlinton  v.  Dibben,  IS,  74 

Hipkins  v.  Birmingham  Gas  Co., 

184,  495 
Hirschbnrg  v.  People,  682 

Hirst  V.  Molesbury,  570 

Hitchcock  V.  Way,  383,  692 

Hixon  V.  George,  119 


xxxu 


TABLE    OF    CASES. 


Hoard  v.  Wilcox, 
Hobbs  V.  Henning, 
V.  R.  R.  Co., 
Hoboken  B.  A.  v.  Martin, 
Hobson  V.  Neal, 
Hockailay  v.  Wilson, 
Hodgkinson  v.  Wyatt, 
Hodgson  V.  Bank'g  House, 

V.  Carlisle, 

V.  Jex, 

V.  Roth, 

V.  Temple, 
Hodsden  v.  Hairidge, 
Hodson  V.  Sharpe, 
Hoffman  v.  Delilianty, 

V.  Locke, 

V.  Strohecker, 
Hogan  V.  Guigon, 
Hoguet  V.  Wallace, 
Holboru  Un.  v.  St.  Leonard's, 
Holbrook  v.  Holbrook,        44, 

V.  Nichol, 
Holgate  V.  Slight, 
Holl  V.  Deshler, 
Holland,  .Exp., 

V.  Makepeace, 

V.  Osgood, 

V.  State, 
Holliday  v.  St.  Leonard, 
Hollingworth  v.  Palmer, 
Hoilis  V.  Marshall, 
Hollman  v.  Bennett, 
Holmari's  App., 
Hoi  man  v.  Johnson, 
Holme  V.  Guy, 
Holmes  v.  Clarke, 
V.  Service, 
Holt  V.  Green, 
Homan  v.  Liswell, 
Home  Ins.  Co.  v.  Tax.  Distr., 
Homer  v.  Com'th, 
V.  Fish, 


6G4 
647 

393,  517 
624 

393,  684 
281 
692 
551 
225 
571 
54G 

647,  651 
444 
189 
531 
387 
159 
271 
448 
667 
115 
397 
641 
44,  45 
596 
62 
621 
136 
186 
33,  399 
329 
174 
565 
647 
39 
672 
26 

650,  655 

547 

262 

698 

13 


447, 
62, 


Homoeop.  Life  Ins.  Co.  v.  Marshall,  155 

Hood's  Est.,  242 

Hood  V.  Dighton  Bridge,  336 

Hooker  v.  De  Palos,  647 

V.  Hooki'r,  363 

Hooper  v.  Edwards,  360 

V.  Sheimer,  509 

Hopkins  v.  Crowe,  403 

V.  Jones,  363,  371 

V.  Fogler,  100 

V.  Long,  23 

Hopper,  Ee,  606 

Hopt  V.  Hopt,  181 

Hopton  V.  Thirl  wall,  183 

Horn  V.  Ion,  530 

V.  R.  R.  Co.,  703,  704 

Horner  v.  State,  452,  456 

Horsfall  v.  Davy,  666 

Horton  v.  School  Comm'rs,  8,  281 


Hoskinson  v.  Adkins,  615 

Hoialing  v.  Cronise,  174,  177 

liougli  V.  Windiis,  539 

House  V.  McKenney,  189 

V.  State,  ^275 

Houseman  v.  Commonwealth,  711,  721, 

725,  726,  727 

Houston  V.  Moore,  223,  236 

&c.,   Rv.   Co.  V.  Travis 

Co.,  229 

Hover  v.  Pa.  Co.,  234 

Howard  Ass'n's  App.,   7,  67,  251,  352, 

513 

Howard  Co  ,  Div'n  of,        44,  703.  704 

V.  Boddington,  612 

V.  Dill,  141 

V.  Stale,  681 

Howe  V.  Peckham,  173 

V.  Starkweather,  309 

V.  Svnge,  657 

V.  Welch,  245,  509,  510 

Howell  v.  Coupland,  627 

V.  Lond.  Dock  Co.,  419 

V.  State,  743,  744 

V.  Stewart,    557,  647,  653,  656 

Howes,  Ee,  701 

v.  Inland  Riv.  B'd,  561 

Ilowey  V.  Miller,  174,  178 

Hoy  land  v.  Brenmer,  161 

lloyle  V.  Hickman,  469 

Hoyt  V.  Thompson,  509 

Hubbard  v.  Slate.  682 

V   Wood,  134 

Huber  v.  Reilly,  628 

Huckle  V.  Wilson,  215 

Hndler  v.  Golden,  142 

Hudson  V.  McRae,  185 

V.  Tooth,  41 

Hudston  v.  Midi.  R.  Co.,  527 

HiifT  V.  Als.ip,  89 

Huffman  v.  State,  453,  467 

Hugg  v.  Camden,  619 

Huggins  v.  Bambridge,  223 

Hughes'  Case,  31,  632 

Hughes,  Exp.,  568 

V.  Buckland,  403 

V.  Chatham,  200 

V.  Chester  R.  Co.,  86 

V.  Fariar,  531,  532 

V.  Lumley,  393 

V.  Morris,  445,  530 

Huidekoper  v.  Biirrus,  254 

v.  Douglass,  495 

Huling  V.  Drexell,  634 

Hull  V.  Hull,  27 

V.  R.  R.  Co.,  216 

B'k,  Exp.,  628 

Dock  Co.  V.  Browne,  471,  478, 

494 

V.  La  March,  494 

Humble  v.  Mitchell,  69,  562 


TABLE    OF    CASES. 


xxxni 


Hume  V.  Gossett,  281 

Humfrey  v.  Gery  291 

Humphrey  v.  Kingman,  200 

Humphreys  v.  Green,  445 

V.  Magee,  189 
Hungerford   Market   Co.   v.  City 

St.  Boat  Co.,  633 

Hunt  V.  Gr.  N.  R.  Co.,  283 

V.  Hibbs,  620 

V.  Holden,  543 

V.  Jennings,  683 

V.  R.  R.  Co.,  344,  400 

V.  State,  754 

V.  Wall,  23,  446 

V.  Wimbledon  L.  B'd,  626 

Hunter  v.  Gibbons,  13 

V.  Kockolds,  73,  291 

V.  Potts,  241 

V.  Reilly,  140 

Huntington  v.  Nicoll,  628 

Huntingtower  v.  Gardiner,  460 

Huntress,  The,  714 

Hurford  v.  Omaha,  618 

Hursh  V.  Hursh,  549 

Hurst  V.  Hawn,  259 

Hussey's  Case,  156 

Huston  V.  Stringham,  191 

Hutchin  v.  Niblo,  29 

Hutch  ins,  Exp.,  373 

V.  Player,  298,  304 

V.  Stilwell,  _  189 

Hutchinson  v.  Gillespie,  663 

V.  Greenwood,  482 

Hutton  V.  Scarborough  Hotel,  492 

Huxham  v.  Wheeler,  3u3 

Hyatt  V.  Taylor,  7,  8 

Hyde  v.  Johnson,       65,  141,  350,  536 

V.  White,  743 

Park  V.  Oak  Wood  Cem'y 

Ass'n,  2S1,  298 


Ihmsen  v.  Nav.  Co.,        152,  254,  256, 

363,  365 

lies  V.  West  H.  Union,  337,  478 

111.,  &c.,  Canal  v.  Ciiicago,       271,  683 

L.  &  L.  Co.  V.  Bonner,  375 

W.  R.  R.  Co.  V.  Gray,  616 

Imper.  Gas  Co.  v.  London  Gas  Co.,  13 

India,  The,  278,  697 

Indiana,  &c.,  Ry.  Co.  v.  Attica,       490 

Indianapolis  v.  Imberrv,  391 

Ac,    R.   R.   Co.   V. 

Blackman,  148 

&c.,    R.   R.  Co.  V. 
Kinney,  496 

Indian  Chief,  The,  119 

Industry,  The,  323,471 

Ingalls  V.  Cole,  68 

Ingate  v.  Austr.  Lloyd's  Co.,  555 


IngersoU  v.  Randall,  644 

V.  State,  746 

Ingraham  v.  Regan,  518 

V.  Speed,  400 

Ings  V.  London,  &c.,  R.  Co.,  385 

Innis  V.  Templeton,  202,  615 

lona,  The,  486 
Iowa,  &c.,  Co.  V.  Webster  Co.,         246 

Irish  Peat  Co.  v.  Phillips,  615 

Iron  Man.  Co.  v.  Haight,  752 

Ironsides,  Tiie,  388 

Irresistible,  The,  681,  689 

Irwin  V.  Williar,  194 

Isham  V.  Iron  Co.,  54,  288 

Islierwood  v.  Oldknow,  506 

Iveson  V.  Moore,  673 

Iverson  v.  State,  282 

Ivey  V.  Nicks,  358 

V.  Phifer,  189 


J. 


Jackman  v.  Garland, 

366 

Jackson  v.  Beaumont, 

637 

V.  Bowen, 

192 

V.  Bradt, 

170 

V.  Barnham, 

65 

V.  Cat  1  in. 

167 

V.Collins,    130,162, 

360,  400 

V.  Gilchrist, 

80 

V.  Ingraham, 

474 

V.  Purdue, 

456 

V.  Spittall, 

245 

V.  Varick, 

446 

V.  Warren, 

142 

V.  Waters, 

474 

V.  Wool  ley. 

372 

Co.  V.  State, 

227 

Jacob  V.  U.  S., 

438,  443 

Jacobs  V.  Brett,                  211 

213,  215 

V.  Feaiherstone, 

17 

V.  Miller, 

733 

V.  Walton, 

189 

Jacoby  v.  Gogell, 

153 

V.  Shafer, 

54,  57 

James  v.  Com'th, 

699 

V.  Duljois,           29,  80, 

678,  685 

V.  Patten, 

11 

V.  R.  Co., 

221,  630 

V.  Rowland, 

396 

Jamison  v.  Burton, 

183.  518 

V.  Jamison, 

■  154 

Janes  v.  Buzzard, 

677 

Janesville  v.  Markoe, 

306 

Jaques  v.  Weeks, 

159 

V.  Withy, 

69:' 

Jarman,  Exp  , 

424,  525 

Jmssov  v.  Delias, 

S'-O 

Jefieris  v.  R.  R  Co., 

597 

Jefferson  v.  Litchfield, 

244 

XXXIV 


TABLH    OF    CASES. 


Jefferson  v.  Whipple, 

227,  229 

JeH'ersonville  v.  \Veerns, 

351 

Jefl'ery  v.  Marshall, 

61fi 

Jeffreys  v.  Boosey,          4,  74, 

243,  268 

V.  Evans, 

567 

Jeffries  v.  Alexander, 

193,  197 

Jenkins  v.  Ewin, 

747, 

750,  751 

Jenning's  C;ise, 

565 

Jennings  v.  Hammond, 

646 

Jersey  City  v.  Hudson, 

336 

V.  R.  R.  Co., 

259,  495 

&c.,  Co.  V.  Consumers' 

Gas  Co  ,  9, 

495, 

671,  672 

Co.  V.  Davison, 

33,  335 

Jesson  V.  Wright, 

350 

Jesus  College  Case, 

155 

Jewell  V.  Stead, 

553 

V.  Weed, 

9 

Jewison  v.  Dyson, 

500 

Jocelyn  v.  Harrett, 

43t 

Johannes,  The, 

242 

John's  Adm'r  v.  Pardee, 

171 

Johns  V.  State, 

320 

Johnson's  A  pp., 

99,  193 

Case, 

248,  249 

Johnson,  Exp., 

14,  568 

V.  Bush, 

278 

V.  By  id. 

259 

V.  Colam, 

218 

V.  Credit  Lyonnais, 

1()0 

V.  Gibbs, 

441 

V.  Harris, 

103 

V.  Hudson, 

651 

V.  Meeker, 

680 

V.  Mercliandize 

701 

V.  R.  R.  Co.  (23 

111.) 

,595,743 

V.  R.  R.  Co.  (49  N. 

Y.),      7 

V.  State, 

617 

V.  Tate, 

419,  427 

V.  Tompkins, 

404 

V.  Upliam, 

74,  439 

V.  U.  S., 

150 

Johnston's  Est., 

259, 

271,  277 

Johnston  v.  Bank, 

509 

V.  H'.gg, 

563 

V.  White, 

106 

Johnstone  v.  Huddleston 

J 

87 

Joilie  V.  Jacques, 

014 

Jolly  V.  Hancock, 

608 

Jones,  Ezp., 

102, 

472,  596 

V.  Bird, 

698 

V.  Borden, 

228 

V.  Brown, 

251 

V.  Carmarthen, 

696 

V.  Collins, 

144 

V.  Davis, 

390 

V.  Dexter,        134, 

173, 

251,  <»7 

V.  Eslis, 

453 

V.  Green, 

117 

V.  Harrison, 

418,  423 

V.  Hughes, 

404 

Jones  V.  Hutchinson,  433 

V.  Johnson,  346 

V.  Jones,  23,  24 

V.  Mersey  Docks,  206,  514,  525 

V.  Ogle,  368 

V.  Sevier,  358 

V.  Smart^  17 

V.  Smith,  648 

V.  State,  621,681,689 

V.  Surprise,  510 

V.  Talharn,  223 

V.  Taylor,  186 

V.  Thompson,  102 

V.  Vict.  Dock  Co.,  482,  484 

V.  Water  Com'rs  of  Detroit,    96 

Jordan  v.  Trumbo,  446 

V.  Wisner,  370,  373 

Jory  V.  Orchard,  139 

Josselyu  v.  Stone,  227 

Journeay  v.  Gibson,  384,  395,  396,  397 

V.  State,  615 

Jovce  V.  Booth,  638 

Julius  V.  O.^ford  (Bp.),  421 

Ju.stice  V.  R.  R.  Co.,  180,  217 

Justices  V.  House,  621 


K. 

Kamer  V.  Clatsop  Co  ,  122 

Kamerick  v.  Casileman,  266,  397,  398 
Kane  v.  Com'th,  543 

V.  People,  149,  167 

V.  R.  R  Co.,  695 

Kansas  Pac.  Ry.  Co.  v.  Wyandotte 

Co.,  55,  252 

Kate  Heron,  The,  6 

Kay  V.  Goodwin,  681 

Kearns  v.  Cordwainer's  Co.,       86,  663 
Kearney  v.  Vauglian, 
Keeling's  Road, 
Keely  v.  O'Connor, 
Keeran  v.  Giiffith, 
Keighley's  Ca^e, 
Keith  V.  Qiiinney, 
Keller  v.  Com'th, 
V.  Nutz, 
V.  Slate, 
Kellogg  V.  Carrico, 

V.  Decatur  Co., 
V.  Oslikosli, 


362 

54,  57 

127 

159 

203 

36,  39,  400 

311,  437 

160 

681,  682 

551 

229 

238 

427,  428,  612 

398 

189 

594 

373 


Kelsev  v.  Kendall, 
Kelly  V.  Bartley, 

V.  Pittsburgh, 

V.  R.  R  Co., 

Tp.  V.  Union  Tp.,  156,  292,  331, 

407 

Kendall  v.  Robertson,  192 

V.  U.  S.,  115 

V.  Vanderlip,  191 


TABJ.E    OF    CASES. 


Keniori  v.  Ilill,  501 

Kennedy  v.  Cunningham,  593 

V.  Gibson,  432 

V.  Gies,  718,  728,  733 

V.  Kennedy,  400,  517 

V.  Palmer,  701 

V.  People,  712 

V.  Sacramento,  427,  429 

V.  Townley,  227 

Kensington  v.  Keith,  255 

Kent  V.  Rand,  615 

V.  Somerville,  82 

V.  Walton,                 ■  192 

Kentucky  v.  Ohio,  508 

Kenyon  v.  Hart,  102 

Kepner  v.  Commonwealth,  703 

Kerlin  v.  Bull,  152,  335 

Kerlinger  v.  Barnes,  281,  363 

Kerr  v.  Haverstick,  547 

Kerrigan  v.  Force,  705 

Kerrison  v.  Cole,  657 

Kessler  v.  Smith,  693 

Keynsliam  v.  Baker,  124 

Kevport  St.  Co.  v.  Trans.  Co.,     38,  42 

Kii)be  V.  Ditto,  279 

Kibble,  Exp.,  __      378 

Kilgore  v.  Commonwealth,     273,  299, 

304,  308 

Kimbray  v.  Draper,  387,  389 

Kimbro  v.  Colgate,  691 

King's  Appeal,  133 

King  V.  Cook,  226 

V.  Cornell,  271 

V.  Course,  395,  396 

V.  George,  567 

V.  Greenway,  138 

V.  Low,  201 

V.  McCann,  616 

V.  Martin,  245 

V.  Moore,  701 

V.  O'Brien,  245 

V.  Ry.  Co.,  333 

V.  Thompson,  573 

Kingley  v.  Scii.  Dir's,  588 

Kingsbury  v.  Kirwan,  194 

V.  Sperry,  391 

Kingsford  V.  G.  W.  R.  Co.,       18.  145 

Kingsland  v.  Palmer,  259,  282 

Kinney  v.  Mallory,  259 

K inning's  Case,  605 

Kip  V.  Hirscli,  246 

Kirk  V.  Armstrong,  616 

V.  Dean,  82,  503 

V.  Todd,  13,  350 

Kirkpatrick  v.  Adams,  1^4 

V.  Gibson,  517 

v.  Tattersall,  66 

Kirkstall  Brewery,  Re,  540 

Kirlpalrick  v.  Bvrne,  7,  23 

Kirtland  v.  Hotclikiss,  235 

Kitchen  v.  Bartsch,  500 


Kitchen  v.  Shaw,  568 

V.  Smith,  698 

Kite  &  Lane's  Case,  218 

Kittanning  Ins.  Co.  v.  Scott,  20 

Kittow  V.  Liskeard,  137 

Kline  v.  Evershed,  403 

V.  Kline,  106 

Klinginsmith  v.  Nole,  325 

Klopp  V.  Live  St.  Ins.  Co.,  137 

Kuabb  V.  Kaufman,  764 

Knapp  V.  Brooklyn,  115 

V.  Duclo,  542 

Kueass  v.  B'k,  667 

Kneedler  v.  Norristown,  492 

Knight,  Re,  284 

V.  Bean,  616 

V.  Farnaby,  448 

V.  Ocean  Co.,  515 

V.  R.  R.  Co.,  244 

V.  Thayer,  169 

Knoup  V.  B'k,  687 

Knox  V.  Baldwin,  687 

V.  Lee,  428 

V.  Waldborough,  244 

Co.  V.  McComb,  305,  309 

Knubley  v.  Wilson,  439 

Koch's  Est.,  391,  392 

Kocher  v.  Cliristian,  202 

Kohl  V.  U.  S.,  222 

Kollenberger  v.  People,  54,  282 

Koltenbrock  v.  Cracraft,  701 

Koontz  V.  Howsare,  58 

Korah  v.  Ottawa,  259,  276 

Kossuth  Co.  V.  Wallace,  390 

Kountze  v.  Omaha,  42 

Kramer  v.  Goodlander,  180 

V.  Rebman,  175 

Kronheim  v.  Johnson,  482 

Kugler's  Appeal,  696 

Kuntz  V.  Davidson  Co.,  233 

Kiipfert  V.  Build'g  Ass'n,  396 

Kntztown,  Re  Alley  in,  269 

Kyle  V.  JeflVeys,  268 

V.  Monisomery,  131 

Kynaston  v.  Mackinc^er,  543 

Kwok  Ah  Sing  v.  Atty.-Gen.  128 


Lacey  v.  Moore,  29 

Lackawanna  Co.  v.  Stevens,  149 

&c.,  Co.  V.   Little 

Wolf,  622 

Ladd  V.  Kimball,  326 

V.  Wiggin,  192 

Lade  v.  Trill,  632 

Lafone  v.  Smith,  195 

Lafourche  Parish  v.   Terrebonne 

Parish,  37 

La  Grange  Co.  v.  Cutler,  54,  282,  290 


XXXVl 


TABLE   OF   CASES. 


552, 

36,  37 

108, 


395, 


Lair  v.  Killmer,  451, 

Laidler  v.  Young, 
Lake  v.  Butler, 

V.  Caddo  Parish, 

V.  R.  R.  Co., 
Lamb's  Api) , 
Latnb  v.  N.  L  R.  Co., 
V.  Sclioitler, 
V.  Walker, 
Lambert  v.  Taylor, 
Lambertson  v.  Hogan, 
Lamborn  v.  Dickinson, 
Lammer,  Me, 
Lamville,  &c.,  B'k  v.  Bingham, 
Lancashire  v.  Shelford, 
Re, 

Road  in, 
Lancaster  v.  Greaves, 
Lance's  A  pp., 

Lane's  A  pp.,  486, 

Lane  v.  Bennett, 

V.  Cotton, 

V.  Harris,  565, 

V.  Kennedy, 

V.  Kelson,        381,  382,  389, 

V.  Schomp, 

V.  Wbeeler, 
Lanfear  v.  Blossman, 
Lang  V.  Kerr, 

V.  Scott, 
Langdon  v.  Potter, 
Langham  Rink  Co.,  Re, 
Langton  v.  Hughes,  641, 

Lansdale  v.  Cox, 
Lansing  v.  Wiswall, 
Larchin  v.  N.  VV.  B'k, 
Larkin  v.  Sitffarans, 
Larpent  v.  Bibby, 
Larzelere  v.  Haubert, 
La  Salle  v.  Blanchurd, 
La  Selle  v.  Whii field. 
Lash  V.  Von  Neida, 
La.  St.  B'k  V.  Nav.  Co., 
Latham  v.  Hyde, 

V  Lafune, 
Latless  v.  Patten, 
Lathrop  v.  Dun  lop, 

V.  Ins.  Com'rs, 
Lande  v.  Ry.  Co., 
Laugh lin  v.  Com'th,  688, 

Lauve's  Siicc'n, 
Lavalle  v.  People, 
I^aw  V.  Hodson, 
Lawrence  v.  Belger, 

V  G.  N.  R.  Co., 
V.  King,  64, 

V.  Wilcox, 

R.  R.  Co.  V.  Mahoning 
Co., 
Lawson  v.  Gibson, 
Lazear  v.  B'k, 


455 

80 
553 
,38 
484 
170 
495 
683 

13 
227 
39(i 
509 
486 
191 
227 
139 
542 
56S 
599 
665 

27 
147 
703 
229 
395 
437 
616 
507 

88 
216 
7,  8 
572 
647 
104 
673 
123 
391 
371 
171 
363 
515 
206 
658 
649 

88 
700 
246 

80 
694 
692 
508 
708 
648 
541 
598 
536 
637 

389 

282 
191 


Lea  V.  Feam.ster,  191 

Leach  v.  Jay,  105 

V.  N.  S.  R.  Co.,  600 
Lead  Smelt.  Co.  v.  Richardson,       554 

Leake  v.  Linton,  134 

IjRaroyd,  Exp.,  329 

Leaser  v.  Owen  Lodge,  370 

Leath  v.  Vine,  185 

Leathers  v.  B'k,  691 

Leavenworih  Co.  v.  Miller,  747 

Leavilt  v.  Blatchford,  93 

Le  Coiiteulx  v.  Bufiiilo,  590 

Ledlie  v.  Nav.  Co.,  313 

Lee  &  Co.'s  B'k,  741 
V.  Barkhampsted,                96,  468 

V,  Bnckheit,  391 


V.  Bnde,  &c.,  R.  R.  Co., 


42,  203, 
449 


V.  Cook,  375 

V.  Forman,  152 

V.  Kirby,  127 

V.  Lacey,  183 

V.  Lanahan,  373 

V.  Simpson,  181 

V.  Stiger,  191 

Lees  V.  Newton,  102 

V.  Summergill,  80 

Leese  v.  Clark,  42 

Leete  v.  Il.irt,  404 

Lefever  v.  Witmer,  367,  370 

Legg  V.  Pardoe,  182 

Leggate  v.  Clark,  615 

Leggatt  V.  Gt.  N.  R.  Co.,  439 

Legoux  V.  Wante,  446 

Lpgrand  v.  Sidney  Coll.,  704 

Lehigh  Bridge  Co.  v.  Coal,  &c., 

Co.,  438 

Lehigh  Co.  v.  Meyer,  257,  258 

V.  Shock,  ]00 

Coal  Co.'s  App.,  750 

Iron  Co.  V.  Lower  Ma- 

cungie,  758 

Lehigh  Water  Co.'s  App.,  485,  729 

Lehman  v.  McBride,  262 

V.  Robinson,  534 

Leicester  v.  Burgess,  304 

(Earl)  V.  Heydon,  524 
Leigh  V.  Kent,          500,  502,  697,  698 

Leighton  v.  Walker,  318 

Leinbach  v.  Templin,  178 

Leith  Com'rs  v.  Poor  Insp'rs,  226 


Le  Louis, 
Leman  v.  Hoiisley, 
Lemane  v.  Stanley, 
Leonard  v.  Com'th, 
V.  Fuller, 
Leoni  v.  Taylor, 
Leroux  v.  Brown, 
Le  Roy  v.  Chabolla, 
Les  Bois  v.  Bramell, 
Lester  v.  Foxcroft, 


240,  243 

380 

66,  483 

132,711,716 

405 

10,  11 

239 

54 

396 

445 


TABLE   OF   CASES. 


XXXVll 


Lester  v.  Garland, 

546 

V.  Torrens, 

337 

345 

Le  Sueur  v.  Le  Sueur, 

234 

Levasser  v.  Washburn, 

227 

Levering  v.  K.  R.  Co., 

71 

435 

V.  Sliockey, 

363 

Leversee  v.  Keynolds, 

2,9 

Levi  V.  Sanderson, 

680 

Levy  V.  State, 

705 

V.  Yates, 

645 

Lewis,  Exp., 

les 

Be, 

330 

V.  Arnold, 

126 

V.  B'k  of  Ky., 

707 

V.  Barnett, 

346 

356 

V.  Carr, 

471 

V.  Foster, 

681 

682 

V.  G.  W.  R.  Co., 

37 

V.  Hennen, 

630 

V.  HoUahan, 

759 

V.  Labauve, 

635 

V.  Perkins, 

178 

V.  Sherman  Co.  Com'rs,        129 

V.  State,  173 

V.  Stout,  273 

V.  Welch,  642 

Lexington  Ave.,  Re,  713 

Lichfield  v.  Simpson,  662 

Lichtenstein  v.  State,  281 

Life  Ass'n,  Be,  227 

v.  Assessors,  756 

LifFen  v.  Pitcher,  548 

Lightfoot  v.  Tenant,  647 

Lightner  v.  Mooney,  160 

Lillenstine  v.  State,  481 

Limbert's  App.,  562 

Limestone  Co.  v.  Rather,  621 

Lincoln  v.  Hapgood,  730 

V.  Wright,  445 

B.  &  S.  Ass'n  V.  Graham,  396 

College  Case,  44 

Lindley  v.  Davis,  517 

Lindsay  v.  Leigh,  453 

Lindsey  v.  Cundv,  511 

V.  Mille'r,  227 

V.  Rutherford,  650 

Lindsley  v.  Williams,  436 

Lining  v.  Bentley,  593 

Link  v.  Assoc'n,  191 

Linn  V.  Scott,  395 

Co.,  County  seat  of,  514 

Linton's  App.,  57 

Linton  v.  Blakeney,  690 

V.  Sharpsburg  Bridge,  108 

Lion  Ins.  Ass'n  v.  Tucker,  95 

Lippincott  v.  Leeds,  592 

Lisbon  v.  Clarke,  694 

Lismore  v.  Beadle,  637 

Little  v.  Gould,  156 

V.  Poole,  648 


Little  Miami,  <&c.,  R.   R.  Co.,  v. 

Dayton,  225 

Littledale's  Case,  190 

Liverpool  Borough  B'k  v.  Turner,  92, 
530,  612 
Livingood  v.  Mover,  335 

Livingston  v.  Wootan,  189 

Livingstone  v.  Van  Ingen,  671 

Llandaff  Market  Co.  v.  Lyndon,     304 
Lloyd,  Exp.,  519 

V.  Scott,  192 

V.  Taylor,  503 

Lobb  V.  Stanley,  66 

Lock  V.  Miller,  174 

Locke  V.  New  Orleans,  378' 

Lockhart  v.  Tiniey,  370 

Logan  V.  Earl  Courtown,  11 

V.  Logan,  390 

V.  Slate,  542,  700 

Logwood  V.  Huntsville,  477 

Loker  v.  Brookline,  280 

Lol ley's  Case,  234 

London  v.  Wood,  246,  449 

Cotton  Co.,  Re,  47 

Grand    Junct.    R.  Co.  v. 
Freeman,  624 

London  Jt.  St.  B'k  v.  London,  523,  556 
Waterworks  Co.  v.  Bailey,  161 
&  Br.  R.  Co.  V.Watson,  663, 665 
&  S.  E.  R.  Co.  V.  Flower,  599 
&c.,  R.  Co.  V.  Limehouse 
B'd,  307 

Long  V.  Culp,  560 

V,  Grey,  538 

Longey  v.  Leach,  168 

Longlois  V.  Longlois,  264,  265 

Looker  v.  Halcomb,  218 

Loomis  V.  Easton,  191 

Looney  v.  Hughes,  609 

Loper  V.  St.  Louis,  706 

Lorant  v.  Scadding,  623 

Lord,  Be,  388 

V.  Kingsdown,  488 

V.  Parker,  174 

V.  Stedman,  702 

Louden  v.  Blythe,  154 

Loughridge  v.  Huntington,  545 

Louisiana  v.  Taylor,  281 

Louisville  v.  Commonwealth,  58 

V.  Sav.  B'k,  758 

&c.,  R.  R.  Co.  v.  Com- 
monwealth, 116 
Love  V.  Love,  763 
Lovering  v.  Dawson,  605 
Low  V.  Marysville,  143 
V.  Routledge,  119,  614 
Lowe  V.  Fox,  279 
Lowell  V.  B.  &  L.  Corp'n,  601 
Lower  Chatham,  In  re,  9 
Lowther  v.  Bentinck,                        577 


XXXVIU 


TABLE   OF   CASES. 


HI,  397, 
298, 


Lowther  v.  Radnor, 
Ijucas  V.  Harper, 

V.  McBlair, 

V.  State, 

Co.  V.  Ry.  Co., 
Liicraft  V.  Pridliam, 
Ludington  v.  U.  S., 
Ludlow  V.  Johnston, 
Luke  V.  State, 
Luling  V.  Racine, 
Lumberman's  B'k  v.  Bearce, 
Lumpkin  v.  Muncy, 
Lunt  V.  L.  &  N.  W.  R.  Co., 
Lusk  V.  Garrett, 

Lux  V.  Haggin,  5 

Lynn,  Exp., 

Lyall  V.  Guadaloupe  Co., 
Lybbe  v.  Hart, 

Lycoming  Ins.  Co.  v.  Woodworth 
Lyddy  v.  Long  Island  City,     '251, 
Lyde  v.  Barnard, 
Lyme  Regis  v.  Hendley, 
Lyn  V.  Wyn, 
Lynch  v.  Kerns, 
Lynde  v.  Noble, 
Lyner  v.  State, 
Lynn  v.  B.  A., 
Lyon  V.  Fishmongers'  Co., 

V.  Fisk, 
Lyons  v.  Miller, 


409, 


497, 


568 
194 
81 
168 
265 
309 
521 
282 
300 
706 
116 
149 
601 
633 
104 
705 
616 
282 
563 
259 
434 
674 
298 
631 
477 
693 
492 
664 
272 
204 


M. 

McAboy's  App., 
McAden  v.  Jenkins, 
McAfee  V.  R.  R.  Co., 


152, 


McAlister  v.  Jerraan, 

V.  Rochester  (Bp.) 
McAllister  v.  Hoffman, 
McArlluir  v.  Allen, 

V.  Franklin, 
McBride's  App., 
McC'ahan  v.  Hirst, 
McCalmont  v.  Rankin, 
McCarille,  Exp., 
McCarter  v.  Orph.  Asyl., 
.McCarthy  v.  R.  R.  Co., 

V.  White, 
McClinch  v.  Sturgis, 
McCloskey  v.  McConnell, 
•McCluskey  v.  Cromwell, 
.McCoiiky  V.  Alameda  Co., 
McConvill  V.  Jersey  City, 
McCool  V.  Smith,  5,  6, 

McCorinack  v.  R.  R.  Co., 
McCormick  v.  Alexander, 
V.  Nichols, 
V.  R.  R.  Co., 


107 
6S,  494 

281,  473, 
495 
191 
632 
189 
526 
693 
104 
411 
530 

557,  683 

54,  280 

234 

476 

756 

325 

7 

413 

31 

105,  275, 

280,  281 
216 
142 
463 

216,  245 


McCnen  v.  State,  688 

McCuUen  v.  McCreary,  477 

McCulloch's  App.,  110 

V.  State,  235,  756 

McCullock  V.  State,  42 

McCullough  V.  Mitchell,  192 

V.  Moss,  606 

McCutcheon's  App.,  20 

McDermott's  App.,  763 

McDonald  v.  Hovey,  517 

McDonegal  v.  Dougherty,  173 

McDonel  v.  State,  81 

McDonough  v.  Campbell,  281 
McDonough's  El'n,  Re,    609,  610,  611 

McDougal  V.  Paterson,  4,  122,  418, 
423,  424 
McEwen  v.  Bucklev's  Lessee,  384,  398 

McFarlan  v.  State  B'k,  298 

McFarland  v.  Stone,  27,  448 

McFaie's  App.,  74,  285 

McGaughey  v.  Brown,  23,  446 

McGavish  V.  State,  288 

McGavock  v.  Pollack,  547 

McGeehan  v.  Burke,  265,  363 

McGivern  v.  Flemming,  484 

McGlade's  App.,  475 

McGlothlin  v.  Pollard,  370 
McGregor  v.  Deal,  &c.,  R.  Co.,        627 

McGuire  v.  Van  Pelt,  191 

McGwigon  v.  R.  R.  Co.,  246 

Mcintosh  V.  Kilbourne,  363 
Mclntyre  v.  Ingraham,      36,  100,  674, 

585 

McTver  v.  Regan,  13 

McKean  v.  Delancy,  501 

MeKee  v.  McKee,  513 

McKeehan  v.  Com'th,  227 

McKenna  v.  Edmundstone,  3(i6 

McKenzie  v.  Gibson,  216 

V.  State,  515 
McKibben  v.  Lester,        266,  366,  398 

McKibbin  v.  State,  184 

McKinney  v.  Nav.  Co.,  216,  217 

V.  Reader,  634 

McKoin  V.  Cooley,  212 

McKune  v.  Wells,  618 

McLain  V.  New  York,  705,  708 

McLane  v.  Leicht,  713 

McLaughlia  v.  Hoover,  54,  292 

V.  Spengler,  279 

V.  State,  616 

McLaurin  v.  Wilson,  14 

McLean  v.  Nicoil,  482 

McMahon  v.  R.  R.  Co.,  54 

McMaster  v.  Lomax,  41 

V.  State,  362,  367 

McMechen  v.  Mayor,  685 

McMerby  v.  Morrison,  509 
McMichael  v.  Skilton,  212, 215, 364, 6 1 2 
McMicken  v.  Com'th,  500, 533, 535,  536 

McMillen  v.  Anderson,  604,  713 


McMillen  v.  Guest,  687 

McNamara  v.  R.  R.  Co.,  391,  531 

McNamee  v.  U.  S.  227 

McNeill,  Cont.  El'n  of,  219,  249, 
726,  748 
MoNichol  V.  U.  S.,  &c.,  Agency,     395 

McPhiiil  V.  Gerry,  43,  77 

McFlierson  v.  Leonard,  755 

McPike  V.  McP.ke,  104 

McQiiilkin  v.  Doe,  259 

McKue  V.  Holcorab,  742 

V.  Wessell,  304 

McRaven  v.  Forbes,  446 

McReynolds  v.  iSmallhouse,  525 

McRobert  v.  Waslibiirne,  264,  556 

McRoberis  v.  Winant,  619 

McVey  v.  MoVey,  308 

V.  Ry.  Co.,  108 

McWilliara  v.  Adams,  54 

Mabee  V.  Crozier,  638 

Mabrv  V.  Baxter,  392 

M;ic,  The,                               -  138 

Macbeth  v.  Ashley,  201 

Mackay,  Exp.,  195 
Macnawhoc  Plant'n  v.  Thompson,  683 
Macungie  Sav.  B'k  v.  Hottenstein,  191 


Madden  v.  Fielding, 

607 

Maddox  v.  Graham, 

259 

Madison  Co.  v.  Biirford, 

44 

Ins.  Co.  V.  Forsyth, 

645 

&c.,  PI.  R'd  Co.  V. 

Rey- 

nolds. 

411 

Magdalen  Coll.  Case, 

192 

230 

Hosp'l  V.  Knotts, 

359 

Magee  v.  Com'th, 

620 

Magnet,  The, 

344 

Magriider  v.  Carroll, 

45 

V.  State, 

300 

Maillard  v.  Lawrence, 

101 

Main  Str.,  Re, 

312 

Makin  v.  Watkinson, 

599 

Maleverer  v.  Redshaw, 

656 

Malins  V.  Freeman, 

359 

Mallan  v.  May, 

4 

Mallery  v.  Berry, 

138 

M..dlett  V.  Simpson, 

591 

Mallory  v.  Hiles, 

701 

Malloy  V.  Com'th, 

299 

Maloney  v.  Bruce, 

486 

Maltby  V.  R.  R.  Co., 

235 

241 

Manchester  v.  Lyons, 

278 

Mandere  v.  Bousignore, 

707 

Manhattan  Ins.  Inst'n,  Re, 

505 

Man  is  V.  State, 

352 

Mankel  v.  U.  S., 

436 

Manley  v.  St.  Helen's  Co., 

600 

Manly  v.  State,  _        712,  714 

,719 

724 

Manlove  v.  White, 

679 

680 

Mann  v.  Ac  A  tee. 

376 

V.  Burt, 

131 

Mann's  A  pp.. 

370 

P   CASES. 

XXX  l.K 

Manning  v.  Kohn, 

549 

V.  Phelps, 

283 

Mansell  v.  R, 

504,  514 

Manuel  v.  Manuel, 

54 

Maple  Lake  v.  Wright  Co.,  45,  48,  285 

Mardre  v.  Felton, 

246 

Margate  Pier  Co.  v.  Hannam 

,  610,623 

Marqueze  v.  Caldwell, 

517 

Marianna  Flora,  The 

242 

Marine  Mans.  Co.,  Re, 

624 

Mark  V.  State, 

756 

Market  Harborough  v.  Katteringr,    86 

Markliam  v.  Stanford, 

032 

Marks  V.  Benjamin, 

470 

Marlar  v.  State, 

218 

Marple  v.  Myers, 

486 

Marsden  v.  Meadows, 

195 

V.  Savile  Foundry, 

15 

Marsh  V.  Iliggins, 

37i;  384 

V.  Nelson,               168 

349,  487 

Marshal  v.  R.  R.  Co., 

222 

Marshall  v.  Bown, 

161 

V.  Exeter  (Bp.), 

500 

V.  Martin, 

297 

V.  Nicholls, 

215 

V.  Pitman, 

206 

V.  Ullesvvater  Co., 

674 

V.  Vultee, 

142 

V.  Witte, 

140 

Marshall's  Lessee  v.  Ford, 

488 

Marson  v.  Limd 

418 

V.  Ry.  Co., 

333 

Marston  v.  Tryon, 

456,  457 

Martin,  Exp., 

593 

V.  Bldg.  Ass'n, 

193,  615 

V.  Gleason, 

77 

V.  Hemming, 

41,  43 

V.  Hunter's  Lessee, 

720 

V.  Robinson, 

27,  448 

V.  State,                 224, 

230,  363 

Martindale  v.  Martindale, 

694 

Martz,  Re  Cont.  El'n  of, 

313 

Mason  v.  Aird, 

401 

V.  Boom  Co., 

255 

V.  Fearson, 

427 

V.  Finch, 

44,  363 

V.  Police  Jury, 

490 

V.  White, 

274 

Massey  v.  Burton, 

198 

V.  Sladen, 

543 

Massy  v.  Johnson, 

55e 

Masters,  Re, 

80 

V.  Child, 

198 

Mather  v.  Brokaw, 

178 

V.  Brown, 

614 

V.  Scott, 

197 

Matheson  v.  Hearin, 

508 

Mathews  v.  Shores, 

505 

Mathieson  v.  Harrod, 

614 

Matthew  V.  Zane, 

701 

Matthews,  Exp., 

515 

xl 


TABLE   OF   CASES. 


Matthews  v.  Caldwell,  336 

V.  Com'th,  90,434 

]\[attliewson  v.  Phoenix,  &c., 

Foundry,  678 

Mattisor.  v.  Hart,  4 

Mattox  V.  IIijj;htsluie,  615 

Maurice  v.  Marsden,  663 

Maus  V.  Logansport,  &c.,  R.  R.  Co.,  35 

Maxton  v.  Gheen,  194 

Maxwell  v.  Collins,  115,  166 

V.  Evans,  1'20 

V.  Rives,  457 

V.  State,  27 

V.  Wessels,  616 

Mav,  Exp.,  326 

V.  Grant,  8 

V.  G.  W.  R.  Co.,  471 

Maybin  v.  Couion,  643 

Mayer  v.  Harding,  628 

V.  Prnd'homme,  616 

Mayhew  v.  Wardlev,  338,  469 

Maynard  v.  B'k,  589 

Mayor's  Ct.,  Exp.,  255 

Mayor  v.  R.  R.  Co.,  496 

Mays  V.  King,  616 

Maysville,  Ac,  R.  R.  Co.  v.  Her- 

rick,  111,  441 

Mavsville  Tnrnp.  Co.  v.  How,  71,  497 

Melid  V.  Bagnall,  260,  261 

Means'  App.,  664 

Mech.,  &c.,  B'k's  App.,  258 

Ass'n  V.  Wilcox,  199 

Kav.  B'k  V.  Sallade,  119 

Meckel's  App.,  419 

Medbiiry  v.  Watson,  62 

Medfonl  v.  Learned,  363 

Melizei's  App.,  380 

Melody  v.  Reab,  174,  438,  443 

Memphis  v.  Adams,  590 

v.  Laski,  117,  119 

v.  U.  S.,  701 

Memmert  v.  McKeen,  109 

Mendon  v.  Worcester,  44,  62 

Meng  V.  Winkleman,  551 

Mercer  v.  Watson,  384 

Co.,  &c.,  Ins.  Co.  V.  Stran- 

ahan,  491 

Mercers  v.  Bowker,  449 

Merchants'  B'k  v.  Bliss,  457 

V.  Cook,  97 

Merch.  Exch.  Nat,  B'k  v.  Comm, 

Wareh.  Co.,  _  191 

Merch.  Ins.  Co.  v.  Ritchie,  683 

Merchant  Taylors  v.  Truscott,         308 
Meredith  v.  Chancey,  545 

Merrill  v.  Goriiam,  282 

Merrimac  Min'g  Co.  v.  Levy,  509,  668 
Mersey  Docks  v.  Lucas,  268,  309 

Co.  v.  Cameron,  225, 226 
Merwin  v.  Ballard,  363,  392 

Meshke  v.  Van  Doreo,  705 


j\[essersmith  v.  B'k,  664 

]\[elrop.  Asvl.  Distr.  v.  Hill,  598 

B'k  v.  Hitz,  370 

B'd  V.  Steed,  435 

V.  Metr.  Ry.  Co.,          598 

of  Health  v.  Schraa- 

des,  261,  490,  702 

Metle  V.  Mette,  234 

Meyer  v.  McCabe,  245 

V.  West.  Car  Co.,  75 

Mew,  Re,  40 

Mewster  v.  Spaulding,  222 

Mich.,  Ac,  R.  R.  Co.  v.  Slack,        235 

Micklewaite,  Be,  478 

Midland  R.  Co.  v.  Ambergate  R. 

Co.,  511 

V.  Pye,  9,  362,  374 

Middleton  v.  Chichester,  356 

V.  Crofts,  320 

v.  Middleton,  21 

v.  R.  R.  Co.,  694 

Mignault  v.  Malo,  504 

Migotti  v.  Colville,  547 

Miles  V.  Bough,  141 

V.  State,  319 

Mil  ford  V.  Orono,  417 

Milne  v.  Huber,  680,  692 

Mill  v.  Hawker,  538 

Millard  v.  R.  R.  Co.,  174 

Miller's  Case,  681 

Miller  v.  Chance,  496 

V.  Childress,  8,  475 

v.  Com'th,  116 

V.  pjd  wards,  263 

v.  Ford,  446 

V.  Harbert,  202 

V.  Kirk  Patrick,  556 

V.  Marigny,  509 

v.  Miller,  556 

v.  Moore,  378 

v.  Ruble,  615 

V.  Salomons,  7,  8,  350,  399,  443 

V.  Shotwell,  628 

v.  State,          183,  228,  755,  756 

V.  Wentworth,  615 

Millerstown  v.  Frederick,  739 

Mills  V.  B'ld'g  Ass'n,  193 

V.  Scott,  334,  588 

V.  Wilkins,  73 

Milton  V.  Faversham,  464 

V.  Haden,  644 

Milwee  v.  Milwee,  195 

Minet  v.  Leman,  152 

Minis  v.  U.  S.,  254 

Minor  v.  L.  &  N.  W.  R.  Co.,   123,  564 

v.  Mech.  B'k,  400,  427 

Mirehouse  v.  Rennell,  8 

Mirfin  v.  Attwood,  680 

Misch  v.  Mayhew,  547 

Mitchell  v.  Brown,  317,  320,  322 

V.  Cowgill,  404 


TABLE   OF    CASES. 


xli 


Mitchell  V.  Doggett,  685 

V.  Duncan,  54,  294,  315,  319, 

430 

V.  McCuUough,  192 

V.  Mims,  186 

V.  Mitchell,  143 

V.  Oakley,  446 

V.  Sinitii,  642,  644 

V.  Tibbets,  234 

Mobbs  V.  Vandeubrande,  482 

Mobile  V.  Eslava,  114 

&c.,  R.  R.  Co.  V.  Malone,      51 

V.  State,        307 

Sav.  B'k  V.  Patty,  433 

Moers  v.  Reading,   386,  712,  724,  728, 

729,  739,  743,  750 

Mofflitt  V.  Montgomery,  628 

Mohan  V.  Butler,  335 

MoUwo  V.  Ct.  of  Wards,  522 

Molton  V.  Camroux,  638 

Monck  V.  Hilton,  95 

Mongeon  v.  People,  239,  275,  317,  321 

Moninger  v.  Ritner,  380 

Monkleigh,  Exp.,  605 

Monks  V.  Jackson,  140,  141 

Monmouth  v.  Leeds,  428 

Monongahela  Nav.  Co.  v.  Coons,   247, 

567 
Monroe  v.  Luzerne  Co.,  348 

Montague  v.  Smith,  528 

V.  State,  704,  712 

Montclair  v.  Ramsdale,  29 

Montgomerv  v.  Plank  Road  Co.,     707 
V.  State,  681 

Montoursville  Overs' rs  v.  Fairfield 

Overs'rs,      '  615 

Montreal  v.  Stevens,  489 

Montrose  Peerage,  500 

Montville  v.  Houghton,  521 

Moody  V.  Fleming,  228 

V.  State,  44 

V.  Stephenson,  436 

Moon  V.  Church,  602 

V.  Durden,  369 

Moore  v.  Cornell,  177 

V.  Creamer,  328 

V.  Fields,  594 

V.  Hammond,  491 

V.  Houston,  543,  693 

V.  Mausert,    265,  266,  366,  398 

V.  Moss,  259 

V.  Settle,  539 

V.  Smith,  230 

V.  Transp.  Co.,  129 

V.  Trippe,  189 

V.  Vance,  259 

Moores  v.  Bank,  509 

Moran  v.  Comm'rs,  495 

Morant  v.  Taylor,  74 

Morav.  Sem'y  v.  Atwood,  334 

Morden  v.  Porter,  181 


Moreliead  v.  B'k,  466 

Morgan  v.  Bolies,  1S9 

V.  Brown,  338 

V.  Crawshay,  503,  555 

V.  Cnrtenius,  509 

V.  Edwards,  616,  628,  629,  638 

V.  Hamlet,  23 

V.  Metrop.  R.  Co.,  495 

V.  Palmer,  404 

V.  Parry,  620,  621 

V.  Perry,  363 

V.  Thorne,  681,  684 

Morish  V.  Harris,  571,  575 

Morisse  v.  Brit.  B'k,  264,  430 

Morlot  V.  Lawrence,  259 

:\Iorrall  v.  Sutton,  96,  251 

Morrell  v.  Fickle,  262 

Morris  v.  Balderston,  474 

V.  Del.,  &c.,  Canal,  282 

V.  Lindsley,  178 

V.  Meliin,  513,  529 

V.  People,  185,  188 

V.  Ry.  Co.,  244 

V.  Wilson,  482 

&c.,  Co.  V.  State,  114,  539 

Morrison  v.  Bachert,  711,  719,  735,  741 

V.  Barksdale,  259,  501 

V.  Dorsev,  357 

V.  Gen'lSt.  Nav.  Co.,       309 

V.  Grover,  161 

V.  McNeil,  33 

V.  Rice,  380 

V.  Thistle,  592 

V.  Underwood,  635 

Receiver,  &c.,  v.  Dorsey,  664 

Morritt  v.  N.  E.  R.  Co.,  18 

Morrow  v.  Brady,  124 

Mortimer  v.  Pritchard,  163 

Morton  v.  Copeland,  139 

V.  Palmer,  125 

V.  Valentine,  389 

Mosbv  V.  Ins.  Co.,  265 

Mosdel  V.  Middleton,  656 

Moseley  v.  Tift,  490 

Moser  v.  White,  396 

Mott  V.  Pa.  R.  R.  Co.,  763 

Motteram  v.  E.  C.  R.  Co.,  437 

Mouflet  V.  Cole,  553 

Mounsey  v.  Imray,  41,  564 

Mount  V.  Kesterson,  615 

V.  Taylor,  680 

Mountain     City,    &c.,    Ass'n    v. 

Kearns,  20 

Mountcashel  v.  O'Neil,  140 

Mountjoy  V.  Wood,  227 

Mouys  V.  Leake,  656 

Movers  V.  Bunker,  534 

Moyce  v.  Newington,  159 

Moyle  V.  Jenkins,  45 

Moyer  v.  Gross,  41,  61,  284 

V.  Kirby,  216 


xlii 


TABLE   OF    CASES. 


Mover  v.  Pa.  Slate  Co.,  486 

Mt.'  Holly  Paper  Co.'s  App.,  54,  71 

Much  Waltliain  v.  Peram,  198 

Muir  V.  Hore,  292 

V.  Keay,  561 

Miiirliead,  Erp.,  102 

MujTK'idge,  Re,  120 

Mnllord  V.  Clewell,  518 

Mulkern  v.  Lord,  161 

Mill  key  v.  Slate,  682 

Mullen  V.  Erie,  125,  497 

V.  People,  292,  317 

Mulligan  v.  Cavanagh,  150 

Miillin  V.  MoCreary,  174 

Mulliner  v.  Midi.  Ky.  Co.,  598 

Mullins  V.  Collins,  186 

Mullock  V.  Souder,  368 

Mulvey  V.  State,  481 

Mundy  V.  Rutland,  31 

Munic.  Build.  Soc'y  v.  Kent,  8 

Municipality  No.  ^  v.  Morgan,        ^  88 

Munro  v.  Butt,  349 

Munshower  v.  Patton,  227 

Murphy,  Re,  283,  515 

V.  Chase,  477 

Murray  v.  Baker,  106 

V.  Charming  Betsy,  240 

V.  E.  I.  Co.,  531 

V.  Gibson,  352 

V.  Keves,         29,  30,  413,  528 

V.  R.  B,.  Co.,  348 

V.  Thorniley,  56 

Miiser  V.  Miller,  169 

Musgrave  v.  Brady,  476 

Musgrove  v.  K.  K.  Co.  681,  682 

Musselman's  Est.,  147 

Myer  v.  West.  Car  Co.,  65 

Myers  v.  Reed,  733 

V.  Veitch,  529 

Myrick  v.  Hasey,  515 


N. 


N.  Lond.  R.  R.  Co.  v.  Metr.  B'd,    497 
N.  Y.  Fire  Dep't  v.  Buhler,  198 

N.  Y.   Prot.    Episc.   Publ.   Soh., 

Matter  of,  662 

N.  Y.,  &o.,  R.  R.  Co.  V.  Kip,  475 

V.  Super'rs,   280, 

282,  298 

V.  V^an  Horn, 

246 
Nash  V.  Mitchell,  592 

V.  While's  B'k,  687 

Nat.  B'k  V.  Williams,  551 

Nat.  Merc.  B'k,  Exp.,  28,  465 

Nat.  Mut.  Aid  Soc'y  v.  Lupoid,      633 
Naugiit  V.  O'Neil,  685 

Nave  V.  Nave,  427 

Naylor  v.  Field,  281,  378,  596 


Naz.  Lit.,  &c.,  Inst.   v.  Coninaon- 

wealth,  59,  259^ 

Nazer  v.  Wade,  25 

Nazro  v.  Merc,  &c ,  Co.,  7& 

Nga  Hoong  v.  R.,  119,  240 

Neal  V.  Crew,  551 

V.  Moultrie,  488 

Neale's  App.,  164 

Neale  v.  Utz,  545 

Neath  &  B.  R.  Co.,  Re,  424 

Need  ham  v.  Thresher,  272 

Neeld's  Road,  54,  56,  349 

Neeuan  v.  Smith,  325 

Neff's  App.,  363 

Nellis  V.  MuMson,  761 

Nelson  v.  Denison,  648 

v.  La  Porle,  591 

Nesbitt  v.  Lushington,  563 

Nethersoil  v.  Iiidig.  Blind,  602 

Nettles  v.  Stale,  461 

Nettleson  v.  Burrell,  24 

Nevin's  App.,  133 

Nevling  v.  Commonwealth,  181 

Newberry  B'k  v.  R.  R.  Co.,  707 

New  Brighton  R.  R.  Co.'s  App.,       71 
Newburgh,    &c.,   Turnp.    Co.    v. 

Miller,  427 

Newbury  B'k  v.  Sinclair,  191 

Newby  v.  Colt's  Arms  Co.,  124 

Newcastle  Corp'n,  117 

v.  Atty.-Gen.,  500 

V.  Morris,  520 

&c.,  R.  R.  Co.  V.  Mc- 
Chesnev,  172 

Newell  V.  People,     "  7,  714 

V.  Wheeler,  174 

New  Engl.,  &c.,  Co.  v.  Montgom- 
ery Co.,  346 
New  Engl.  Hosp'l  v.  Boston,  125 
New  Haven  v.  Whitney,  277 
Newington  v.  Cottingham,  660 
New  Lond.,  &c.,  R.  R.  Co.  v.  R. 

R.  Co.,  215,  259,  269 

Newman,  Exp.,  42 

V.  Hardwieke,  546 

New  Orleans  v.  Pouiz,  508 

V.  St.  Romes,  142 

&c.,    R.   R.   Co.   V. 

Hempiiill,  400 

Newport,  The,  187 

Bridge,  Re,  419 

Trustees,  Exp.,  588 

New  Portland  v.  New  Vineyard,    706 

Newsom  v.  Greenwood,  686 

Newton  v.  Boodle,  24 

v.  Cowie,  613 

v.  Ellis,  138,  403,  569 

V.  Young,  346 

Man'g  Co.  V.  White,  181 

New  York,  Re  Mayor,  >Scc ,  of,         134 

v.  Lord,  126,  137,  144 


TABLE   OF    CASES. 


xliii 


New  York  v.  Sands, 

591, 

592 

V.  Scjuire, 

735 

&c.,  K.  R 

Co. 

V.  R. 

R.  Co., 

225, 

558 

Niboyet  v.  Niboyet, 

234 

NichoU  V.  Allen, 

422, 

599 

Nicholas  V.  Phelps, 

331 

Nichols  V.  Bertram, 

307 

V.  Halliday, 

352, 

353 

V.  Marsland, 

627 

V.  Scjiiire, 

318 

V.  Wells, 

45 

V.  Wills, 

81 

Nicholson  v.  Ellis, 

330 

V.  Fields,  453,  456,471, 

478 

V.  Hood, 

139 

V.   Mobile, 

&c., 

E.  R. 

Co., 

65,  77,  89 

Nicolls  V.  McDonald, 

384 

Niemeyer  v.  Wright, 

557,  648, 

650, 

655 

Nimmo  v.  Commonwealth, 

227 

Nisbett  V.  Walker, 

191 

Nitrophosph.    Co.    v. 

Katharine 

Dock  Co., 

674 

Nix  V.  Bell, 

641 

Nixon  V.  Phillips, 

9 

292 

V.  Piffet, 

292 

Noble  V.  Durell, 

507 

V.  Gad  ban. 

371 

V.  State, 

55 

V.  The  St.  Anthony, 

235 

Noel  V.  Ewing, 

370 

V.  Kinney, 

647 

Noe  V.  People, 

136 

Noll  V.  State, 

186 

Nolly  V.  Buck, 

7 

Norih,  Centr.  R.  R.  Co.  v.  Com'th,  101 

Ry.  Co.'s  App.,  733 

Norcura  v,  Lum,  446 

Norcutt  V.  Dodd,                       120,  148 

Norris  v.  Barnes,  53 

V.  Carrington,  628 

V.  Crocker,     271,  318,  681,  682 

V.  State,  117 

North  V.  Phillips,  194 

Bridgew.  B'k  v.  Copeland,  373 

Canal  Sir.  Road,  683 

Pa.  R.  R.  Co.  V.  Davis,  126 

R.  R.  Co.  V.  R.  R.  Co.,  225 

S.  R.  Co.  V.  Dale,  600 

Str.,  683 

Whitehall  Tp.,  Re,  545 

Northrop  v.  Cooper,  54S 

North w.  Fert.  Co.  v.  Hvde  Park,  116 

Norton  v.  L.  &  N.  W.  R.  Co.,  492 

V.  Mackie,  245 

V.  Sinimes,  656 

Norwegian  Str.,  Re,          427,  616,  618 

Noseworthy  v.  Bnckland,  614 

Nonrse  v.  Pope,  644 


Novello  V.  Sndlow, 
Nowell  V.  Worcester, 
Nudd  V.  Barnett, 
Nugent  V.  Smith, 

V.  State, 
Nunally  v.  White, 
Nunes  v.  Wellisch, 
Nunn  V.  Fabian, 
Nusser  v.  Com'th, 
Nutter  V.  AccriuKton  L. 


B'd, 


668 
626 
194 
627 

747 
522 
695 
445 
311,  320 
511 


O.  &  M.  R.  R.  Co.  V.  Wheeler,       222 
Oak   Ridge  Coal   Co.,  Lim.,  v. 

Rogers,  117 

Oakland  v.  Carpentier,  42 

Tp.  V.  Martin,  358,  661 

Oakley  v.  Aspinwall,  738 

Oaks  V.  Rogers,  139 

V.  Turquand,  359 

Oates  V.  Nat'i  B'k,  352,  401 

O'Brien  v.  Slate,  213 

O'Byrnes  v.  State,  513,  515 

Occident  B.  &  L.  Ass'n  v.   Sulli- 
van, 492 
O'Connor,  Matter  of,                         443 
V.  Towns,  548 
Odell,  Exp.,     _  195 
Odiorne  v.  Quimbv,                           550 
Ofiiitt  V.  Dangler, "                              178 
O' Flaherty  v.  McDowell,           34,  276 
Ogdea  V.  Benas,  189 
V.  Saunders,                           714 
V.  Strong,                     8,  44,  74 
V.  Witherspoon,  259 
Ogilvy  v.  Foljambe,  66 
O'Hanlon  v.  Myers,                            699 
O'Hare  v.  B'k,                   190,  357,  654 
Ohio  V.  Covington,                            351 
V.  Stunt,                            475,  476 
&c.,  R.  R.  Co.,  V.  Kasson,       191 
Ohrby  v.  Ryde  Com'rs,                     186 
Olcott  v.  Robinson,                             545 
V.  Tioga  R.  R.  Co.,                117 
Oldfield  V.  Dodd,                              415 
Oleson  V.  R.  R.  Co.,                   115,  239 
Olive  Cem'y  Co.  v.  Philad'a,  134,  556 
Oliver's  App.,  24 
Oliver  v.  N.  E.  R.  Co.,                     600 
v.  Wash'n  Mills,                    756 
O'Loghlin,  Re,                                  327 
Om.iha,  &c.,  R.  R.  Co.  v.  Menk,     217 
O'Malev  V.  Reese,                             189 
O'Neal'v.  Robinson,                    51,  252 
V.  Rupp,                                 635 
O'Neil  v.  Cleveland,                           191 
Onj;  V.  Sumner,                                   279 
Opinion  of  Justices  (7  Mass.),  5,  95,  335 
(122  Mass.),       729 


:liv 


TABF.E    OF    CASES. 


Opinion  of  Justices  (136  Mass.), 
(41  N.  H.), 
(45N.H.),752, 
(3  Pick.), 
(22  Pick.),  29, 

Oppenheimer  v.  Morrell, 

Oram  v.  Brearey,  213, 

Orme's  Case, 

Orcutl's  App., 

Orcutt  V.  Berrett, 

Ordway  v.  Centr.  Nat.  B'k, 

O'Kear  v.  Kiger, 

Oregon  Bulletin,  &c.,  Co.,  Re., 

O'Reilly  v.  Bard, 

V.  Thompson, 

Ornamental  Wood  Work  Co.  v. 
Brown, 

Osborne  v.  Everitt,  281, 

Osgood  V.  Breed, 

O'yhanassy  v.  Joachim, 

Oster  V.  Kabeneau, 

Oswald  V.  Berwick, 

Otoe  Co.  V.  Baldwin, 

Ottawa  V.  La  Salle,  150, 

Ouachita  Co.  v.  Tufto, 

Overall  v.  Bezeau, 

Overfield  v.  Sutton, 

Overseers  v.  Kline, 

V.  Smith,   211,  212,  213, 

Owens  V.  Woosnian,  294, 

Oxford  V.  Wildgoose, 


539 
247 
753 
501 
352 
487 
215 
56 
242 
141 
456 
645 
116 
486 
445 


285 
155 
155 
175 
658 
394 
298 
229 
130 
531 
588 
215 
321 
55 


P.,  A.  &  M.  Pass.  Ry.  Co.'s  App.,     54 
P.,  F.  W.  &  C.  Rv.  Co.  V.  Gille- 

land,  '  598,  601 

Pa.  Co.  V.  Dunlap,  520 

&c.,  Co.,  V.  Stoughton,       149,  215 
Coal  Co.  V.  Costello,  131 

R.  R.  Co.'s  App.,  224,  225 

Co.  V.  Canal  Com'rs,        495 
V.  Duncan,  741 

V.  Eby,  126 

V.  Lippincott,  741 

V.  Pittsburgh,      10,  103 
V.  Riblet,  42,  75 

&c.,  E.  E.  Co.  V.  LeufFer,  130,  131 
Pacific,  The,  96 

V.  Seifert,  22,  452,  507 

&  Atl.  Tel.  Co.  V.  Com- 
monwealth, 688,  693 
Packard  v.  Richardson,  500,  501,  504, 

505 

Packer  v.  Noble,  169 

V.  R.  E.  Co.,  252,  495 

Padstow,  &c.,  Ass'n,  Re,  538,  646 

Page,  Re,  203 

V.  Allen,         557,  714,  738,  751 

V.  Bennett,  378 


Page  V.  Pierce, 

Paget  V.  Foley, 

Paine  v.  Spratley, 

Painter  v.  Liverpool  Gas  Co., 

Palairet's  App., 

v.  Snyder, 
Palliser  v.  Gurney, 
Pallisier  v.  Gravesend, 
Palmer's  Case, 
Palmer,  Re, 

V.  Conly, 

V.  Hicks, 

v.  Lacock, 

V.  Metrop.  R.  Co., 

V.  Mining  Co., 

v.  Thatcher, 

v.  York  Bank, 
Palms  v.  Shawano  Co., 
Pana  v.  Bowler, 
Pangborn  v.  Westiake, 
Paucoast  v.  Addison, 

V.  Ruffin, 
Pancras  v.  Batterbnry, 
Paramore  v.  Taylor, 
Parbury,  Exp., 
Pardo  V.  Bingham, 
Parent  v.  Callarand, 
Paris  V.  Hiram, 
V.  Mason, 
Parker,  Re, 

V.  G.  W.  E., 

V.  Hubbard, 

V.  Tasweli, 
Parkes  v.  Prescott, 
Park  Iron  Gate  Co.  v.  Coates, 


328,  543 
291 
490 
604 
713 
475 
178 

497,  659 

54 

350 

338,  339 
166 
594 
635 
664 
11 
457 

246,  436 
264 

517,  652 
106 
142 
663 
152 
357 
385 
202 
543 
217 
645 
494 
281 
530 
187 
635, 


636,  638 

Parkins  v.  Preist,  464 

Parkinson  v.  State,  4,  29,  4.5,  101, 

106,  109,  453,  466,  701 


Parks  V.  State, 
V.  Watts, 
Parlement  Beige,  The, 
Parmelee  v.  Rogers, 
Parmilee  v.  McNutt, 
Parrott  v.  Stevens, 
Parry  v.  Croydon  Gas  Co., 


Parsons 


311, 


Bethnal  Green, 
V.  Chamberlain, 
v.  Payne, 
V.  St.  Matthews, 
V.  Winslow, 
Partington,  Exp., 

V.  Atty.-Gen. 
Parton  v.  Williams, 
Partridge  v.  Naylor, 

V.  Williams, 
Patten  v.  Rhymer, 
Patent  Bread  Co.,  Re, 
Patteson  v.  Bnnks, 
Patterson  v.  Lane, 


227 
213 
240 
189 
227 
259 
322, 
478 
674 
543 
363 
186 
149 
257 
478 
403 
339,  341,  669 
192 
337,  345 
624 
82 
664 


TABLE   OF   CASES. 


xlv 


Patterson  v.  Patterson, 

102 

People  V.  Church, 

19 

V.  Tatum, 

273 

V.  Clark, 

701 

V.  Winn, 

54 

V.  Columbia  Co., 

362 

Paull  V.  Lewis, 

507 

V.  Cook, 

618 

Paxton  V.  Popliam, 

647 

V.  Cotteral, 

137 

Payne,  Exp., 

215,  300 

V.  Can.  Comm'rs, 

335 

V.  Connor, 

275 

V.  Cravcroft, 

216 

V.  Treadwell, 

706 

V.  Daiia,              21, 

88,  95,  166, 

Peacock  v.  P., 

551,  638 

400,  523 

Pearce  v.  Atwood, 

7,54 

V.  Durick, 

275 

V.  B:ink, 

307,  375 

V.  Davis,                677,  678,  705 

Pearcy  v.  Henley, 

202 

V.  Denning, 

531 

Pearson  v.  Bradley, 

546 

V.  Elmore, 

445 

V.  Hull, 

462 

V.  Fancher, 

716 

V.  Kingston, 

575 

V.  Fay, 

740,  755 

V.  Lovejoy, 

143 

V.  Fitzsimmons, 

621 

V.  Yewdall, 

604,  713 

V.  Fleming, 

141 

Pease  v.  Bridge, 

615 

V.  Gilbert, 

227 

V.  Chaytor, 

550 

V.  Gill, 

689 

V.  Norwood, 

551 

V.  Green, 

743 

V.  Peck, 

504,  507 

V.  Greer, 

35 

V.  Whitney, 

259,  311 

V.  Grippen, 

259 

Peate  v.  Dicken, 

568 

V.  Hatch, 

752 

Peerless,  Re, 

152 

V.  Hayden, 

9 

Peet  V.  Nadle, 

252 

V.  Herkimer, 

703 

Peggy,  The, 

382 

V.  Hill, 

411 

Peirce  v.  U.  S., 

506 

V.  Hobson, 

681,  6S2 

Peik  V.  Ry.  Co., 

509 

V.  Hoffman, 

436 

Pelham  v.  Messenger, 

473 

V.  Hopt, 

703 

V.  Pickersgill, 

663 

V.  Hulse, 

458 

Pellew  V.  Wonford, 

546 

V.  Ins.  Co., 

33 

Pender  v.  Lushington, 

201 

V.  Jackson, 

59 

Pendleton  v.  Barton, 

474 

V.  Jaehne, 

263,  520 

Penn  v.  Bornman,              190 

357,  360 

V.  Johnson, 

702 

Penningtun  v.  Coxe, 

44 

V.  Kelly, 

263 

Pennock  v.  Dialogue, 

517 

V.  King, 

29,  411 

Pennoyer  v.  Nefl', 

604,  713 

V.  Kobb, 

338,  339 

Penny  v.  S.  E.  K.  Co., 

214 

V.  Lake  Co., 

619 

Pensacola  v.  Witrich, 

616 

V.  La  Salle, 

743 

People  V.  Admire, 

351 

V.  Lawrence, 

595 

V.  Albertson, 

508 

V.  Livingstone,     3 

79,  393,  394, 

V.  Allen, 

619 

623,  692 

V.  Assessors  (Brooklyn),       678 

V.  Lytle, 

259,  270 

V.  Barr, 

281,  282 

V.  Mahaney, 

44,  262,  520 

V.  Batchelor, 

606 

V.  May, 

117 

V.  Beveridge, 

428 

V.  McCreery, 

617 

V.  Blodgett, 

727 

V.  McLeod, 

233 

V.  B'd  of  Educ'n, 

247 

V.  Miner, 

311,  520 

V.  Bogart, 

185 

V.  Molyneux, 

89 

V.  Borges, 

631 

V.  Montg'y  Superv 

'rs,          679 

V.  Briggs, 

9 

V.  Moore, 

396 

V.  Brooklyn, 

134,  427 

V.  Mortimer, 

392 

V.  Brooks, 

188 

V.  Murray, 

621 

V.  Burns, 

29,  30 

V.  New  York, 

259,  543 

V.  Burt, 

269 

V.  Norton, 

185 

V.  Butler, 

542 

V.  N.  Y.,  Ac,  R.  R.  Co.,      570 

V.  Csesar, 

234 

V.  N.  Y.  Tax,  &c.. 

Com'rs,  541 

V.  Callen, 

724 

V.  Onondaga, 

435 

V.  Carr, 

271 

V.  Plank  Road  Co. 

,              713 

V.  Chautauqua  Co., 

727 

V.  Police  B'd, 

681 

V.  Chapin, 

593 

V.  Potter, 

726,  728 

xlvi 


TABLE   OF    CASES. 


People  V.  K.  R.  Co.  (28  Cal.),  281 

V.  K.  K.  Co.  (35  Cal.),  247 

V.  lieed,  488 

V.  Richards,  569 

V.  Shepliard,  42 

V.  Sheriff;  547,  549 

V.  Shoonmaker,    7,  37,  74,  122 

V.  Sloan,  688 

V.  Soto,  471 

V.  Spicer,  382 

V.  Squire,  715 

V.  St.  Lawrence  Co.,     280,  282 

V.  Starne,  43,  756 

V.  State,  525 

V.  State  Auditors,  369 

V.  Superv'rs  (11  Abb.  Pr.),  427 

V.  Superv'rs  (63  Barb.),      367, 

381,  3S9 

V.  Superv'rs  (14  Mich.),      167 

V.  Superv'rs  (51  N.  Y.),      427 

V.  Superv'rs,  Erie,  417 

V.  Superv'rs,  Essex,  362 

v.  Superv'rs,  Livingston,     417 

V.  Superv'rs,  Montgomery,  265, 

266,  398 

V.  Superv'rs,  Otsego,  417 

V.  Sweetser,  397,  398,  412,  414 

V.  Taylor,  108 

V.  Tibbets,  387,  389 

V.  Tindale,  316 

V.  Tipliaine,  263 

V.  Tisciale,  681 

V.  Tyler,  680 

V.  Utica  Ins.  Co.,     78,86,116, 

400,  442 

V.  Vanderbilt,        211,  212,  662 

V.  Van  Nort,  280,  297 

V.  Walker,  181 

V.Wallace,  713,715 

V.  Wayne  Circ.  Judge,  266,  366 

V.  West  Chester,  306,712 

V.  Western,  54,  400 

v.  Willard,  621 

V.  Williams,  100,  487,  596 

V.  Wiutermute,  678 

V.  Worthington,  100 

V.  Wright,     704,  725,  743,  751 

V.  Youngs,  168 

Peoples'  Fire  Ins.  Co. v.  Hartshorne,  363 

Peppin  V.  Coof)er,  294 

PiM-chard  v.  Ilevwood,  494 

Perdiraris  v.  Bridge  Co.,  703,  707 

Perkins  v.  Eaton,  '189 

V.  Hyde,  189 

v.  Morse,  202 

V.  Perkins,  56,  174 

V.  Severn,  453 

V.  Sewell,  82 

V.  Tliorn burgh,  556 

Perrine  v.  Canal  Co.,  557 

Perring  v.  Trail,  602 


Perry  v.  Mitchell,  593 

V.  R.  R.  Co.,  707 

v.  Skinner,  350,  375,  406 

V.  Wilson,  336 

Co.  V.  Jefferson  Co.,  351 

Peru,  &c.,  R.  R.  Co.  v.  Bradshaw,  259 

Peshali  v.  Layton,  345 

Peters  v.  Condron,  25 

v.  Cowie,  156 

V.  Massey,  371 

V.  Sheehan,  638 

Peterson  v.  Walsh,  235 

Peto  v.  West  Ham.,  554: 

Petrel  Guano  Co.  v.  Jarnette,  645,  692 

Peltamberdass  v.  Thacokorseydass, 

369 
Pettit  v.  Fretz,  99,  168 

Peyton  v.  Mosely,  260 

Pharmaceul.  Soc'y  v.  London  Sup- 
ply Ass'n,  116,  555 
Phelps  v.  Hawley,  427 
V.  Wood,                       516,  590 
Philadelphia  v.  Com'th,  756 
V.  Davis,     301,  451,  466, 
474,  512,  522,  540 
V.  Devine,  141 
v.  Edwards,                  332 
v.  Pass.  Ry.  Co.,  200,  349, 
351,  353,  407 
v.  Scott,               604,  713 
V.Wright,           216,455 
&  Erie  R.  R.  Co.  v. 
Catawissa    R.    R. 
Co.,  101,107,500,  510 
597 
Philbrook  v.  U.  S.,  54 
Phillipi  v.  Bowen,                              461 
Phillips  V.  Clark,                              347 
V.  Com'th,                           661 
V.  Hopwood,                       678 
V.  Hunter,                            241 
V.  Saunders,                         156 
V.  Pope,                                476 
Charity,  Re,                         604 
Philpott  V.  St.  George's  Hosp'l,      193, 
196,  201 
Philpotts  V.  Philpolts,              161,  359 
Philps  V.  Winchcomb,                       139 
Phipps  V.  Kelly,                               212 
Piiipson  v.  Ilarvett,                   275,  313 
Phoenix,  &c.,  Co.  v.  Hazen,              577 
Bess'r  Co.,  Exp.,         371,  392 
Pickard  v.  Marriage,                         195 
Pickering  v.  Cease,                            194 
v.  llfracombe  R.  Co.,      656 
V.  James,                  601,  668 
V.  Marsh,                          327 
Pickett  V.  B'k,                            191,  446 
V.  Boyd,                                 390 
Pickup  V.  Wharton,                           388 
Pierce's  App.,                                20,  98 


TABLE   OF    CASES. 


xh 


Pierce's  Case,  451 

Pierce  v.  Bryant,  486 

V.  Com'th,  721,  756,  758 

V.  Cashing,  551 

T.  Hopper,  16,  218 

V.  Kimball,  705 

Pierpoint  v.  Ilarrisville,  217 

Pierpont  v.  Crouch,  276 

Pierson  v.  Baird,  703 

Piggott  V.  Bush,  444 

Pike  V.  Hoare,  8 

V.  Jenkins,  453,  466 

T.  Ni.cholas,  430 

Co.  V.  Eovvland,       491,606,719, 
720,  745 
Pilkington  v.  Cooke,  288 

Pillow  V.  Gaines,  29 

Pim  V.  Nicholson,  756 

Pinckard  v.  State,  682 

Pingree  v.  Snell,  272,  537 

Pinhorn  v.  Sonster,  388,  393 

Pinkerton  v.  Easton,  18 

Pinkhara  v.  Dorothy,  475 

Pioneer,  The,  650 

Pitman  v.  Flint.  219,  353 

V.  Maddox,  519 

Pitt  V.  Sliew,  439 

Pitte  V.  Shipley,  517 

Pittsburgh  v.  Coursin,  620 

V.  Grier,  600 

V.  Kalchthaler,  23 

V.  R.  E.  Co.,  225 

V.  Walter,  616 

&c.,  R.  R.  Co.  V.  Com- 
monwealth, 101, 199,  217 
&c.,  R.  R.  Co.  V.  Meth- 

ven,  458 

&c.,  R.  E.  Co.  V.  S.  W. 

Pa.  Ry.  Co.,  336 

Planch^  V.  Braham,  330 

Planters',  &c.,  B'k  v.  Andrews,         116 

B'k  V.  State,  292 

Plasterers'  Co.  v.  Parish  Clerks'  Co.,     8 

Piatt  V.  Lock,  443 

V.  Sheriffs  of  London,  460 

Plowman  v.  Williams,  544,  545 

Plumb  V.  Sawyer,  363 

Plummer  v.  Plummer,  505 

V.  People,  74 

Plumstead  B'd  v.  Spackman,  343 

Pochin  V.  Duncombe,  502 

Poe  V.  Stale,  262,  320,  537 

Poertner  v.  Russel,  517 

Poland,  Re,  120 

Pollard,  Re,  603 

Pond  V.  Maddox,  433 

V.  Negus,  619 

Pontchartrain  Co.  v.  Lafayette,        114 

Poock  V.  Laf.  B.  A.,  411 

Pool  V.  State,  149 

Poor  V.  Considine,  12,  19,  92,  434 


I  Poor  Dir's  v.  R.  R.  Co.,  678 

T.  School  Dir's,  226,  478 

Distr.  V.  Poor  Distr.,  142 

Pope  V.  Tearle,  536 

Porter  v.  Hildebrand,  153 

Por(erfield  v.  Clark,  509 

Portland  B'k  v.  Maine  B'k,  548 
Portsmouth  Livery  Co.  v.  Watson,  706, 

707 

Portwardens  v.  Cartwright,  474 

Post  V.  Dart,  191 

Postmaster-Gen.,  Fxp.,  224,  230 

V.  Early,  525,  527 

Potter  V.  Duffield,  483 

V.  Nat.  B'k,  742 

Potts  V.  Staeger,  328' 

Pound  V.  Plumst.  B'd,  511 

Poiilsiim  V.  Thirst,  138 

Pou Iters'  Co.  v.  Phillips,  344 

Powdrell  V.  Jones,  40 

Powell  V.  Boraston,  571 

V.  Waters,  192 

Powers,  In  re,  8 

V.  Barney,  259,  481 

T.  Shepard,  54,  264 

V.  Southgate,  141 

V.  Wright,  381,  481 

Powlter's  Case,  73 

Pratt  V.  Amer.  Bell  Tel.  Co.,  517 

V.  Boston  Street  Comm'rs,       65j 

515 

V.  R.  R.  Co.,  282 

V.  Short,  650,  654 

V.  Stage  Co.,  616 

Preece  v.  Pulley,  493 

Prentice  v.  London,  161 

Prentiss  v.  Barton,  222 

Pretty  v.  Solly,  560 

Price's  App.,  21 

Price  V.  Hopkin,  702 

V.  White,  705 

V.  Wiiitman,  752 

Prices  of  Wine,  519 

Prince  v.  U.  S.,  362,  374 

George  Co.  v.  Laurel,  271,  273, 

589 

Pringle  v.  Carter,  220 

Prior  V.  People,  550 

Pritchard  v.  Arbouin,  197 

V.  Spencer,  363 

Pritchett  v.  Mitchell,  191 

Prell  V.  McDonald,  706 

Proctor  V.  Manwaring,      284,  456,  470 

V.  R.  R.  Co.,  127 

Prot.  Epis.  Sch.,  Re,  370 

Protector,  The,  486 

Protection  Life  Ins.  Co.  v.  Palmer,  549 

Provid.  Co.  v.  Chase,  616 

Pruden  v.  Grant  Co.,  216 

Pryor  v.  Ryburn,  23 

Publ.  Sch.  Trustees  v.  Trenton,        275 


xlviii 


TABLE   OF   CASES. 


Pile  V.  Hetzell,  411 

PiikIi  v.  Diike  of  Leeds,  648 

Pulaski  Co.  V.  Downer,  271 

Purcell  V.  Goshorn,  384 

V.  N.  Y.  L.  Ins.  Co.,   273,  556 

Purely  V.  People,  188 

V.  Smith,  512 

Puryear  v.  Piiryear,  541 

Putnam  v.  Johnson,  730 

V.  Longley,  7,  19 

V.  State,  227 


Quackenbush  v.  Banks,  362,  367 

Quartz  Hill  Co.,  i2e,  105 

Queenan  v.  Palmer,  165 

Quick  V.  Miller,  168 

V.  White  Water  Twp.,  252,  725 
Quigley  v.  Goriiam,  4,  101,  370 

Quilter  v.  Mapleson,  378 

Quinton  v.  Bristol,  497 

Quinn  v.  Electr.  L.  Co.,  582 

V.  Fid.  Ben.  Ass'n,  135,  142,  144 


R. 


E.  {Eex  or  Regina)  v.  Abbott,  215,  313 

V.  Abp.  of  Armagh,  230 

V.  Abp.  of  York,  227 
V.  Adamson,        417,  425,  430,  431 

V.  Ad  lard,  121 

V.  Aiken,  636 

V.  Aldborough,  606 

V.  All  Saints,  493 

V.  Allday,  596 
V.  Allen,                        226,  540,  628 

V.  Ampthill,  629 

V.  Anderson,  240 

V.  Annandale,  198 

V.  Ark  Wright,  618 

V.  Arniytage,  16,  630 

V.  Ashburton,  24 

V.  Astley,  198 

V.  Aston,  543,  630 

V.  Athos,  83,  «6 

V.  Atkins,  661 

V.  Audley,  206 

V.  Bacon,  470 

V.  Badger  162 

V.  Bailey,  700 

V.  Baines,  218,  266 

V.  Banbury,  6 

V.  Bar  ham,  10 
V.  Barlow,                      416,  424,  431 

V.  Barnett,  14 

V.  Barrett,  636 

V.  Bartlett,  593 

V.  Bateman,  79,  86 


R  V.  Beadle, 
V.  Beecham, 
V   Bellamy, 
V.  Belton, 
V.  Berenger, 
V.  Berkeley, 
V.  Berks, 
V.  Berry, 
V.  Bertrand, 
V.  Beverley  Gas  Co., 
V.  Bewdley, 
v.Bii;g, 

V.  Birmingham, 
V.  Bishop, 
V.  Biswell, 
V.  Bjornsen, 
V.  Bleasdale, 
V.  Bloxham, 
V.  Blues, 
V.  Bond, 
V.  Boteler, 
V.  Boultbee, 
V.  Bouiton, 
V.  Brackenridge, 
V.  Bradford, 
V.  Bradlaugh, 
V.  Bradshaw, 
V.  Brice, 
V.  Biidgewater, 
V.  Bridgnorth, 
V.  Bridgnorth  Guards, 
V.  Brighton, 
V.  Brist.  Dock  Co., 
V.  Brooks, 
V.  Brown, 
V.  Buchanan, 
V.  Buck, 
V.  Bucks, 
V.  Burdett, 
V.  Burnaby, 
V.  Burslem  B'd, 
Butler, 


226 

470 

13 

489,  630 
524 
226 
543 
636 

636,  637 

116 

504 

86 

105,  198 
184 
467 
240 
339 
637 
489 
616 
431 
226 
470 
327 
468 
104 
326 
468 

155,  200 
200 
120 
105 

585,  673 
102 

461,  561 

665 

662 

17,  277 

186 

181,  182 

218 

155 

V.  Cambridge,     214,  416,  430,  431, 

603,  606 
Cambridgeshire  JJ.,  510 

Canterbury  (Abp.),  501,  502,  604 


V.  Carew, 

V.  Carlile, 

V.  Carnarvon, 

V.  Carpenter, 

V.  Carr, 

V.  Castro, 

V.  Cator, 

V.  Champneys, 

V.  Chaiitrell, 

V.  Chapman, 

V.  Charles, 

V.  Charlesworth, 

V.  Charrette, 

V.  CheUenham, 

V.  Cheshire  Lines  Com., 


139 

315 

616,  636 

346 

240 

4 

317 

298 

16,  508,  602 

207 


122 

561 

471 

152,  214 

603 


TABLE   OF   CASES. 


xlix 


E. 


V.  Chichester  (Bp.), 

329,  421 

R.  V. 

V.  Chorlton  Union, 

618 

V. 

V.  Christchurch, 

377 

V. 

V.  Clarke, 

338,  339,  340 

V. 

V.  Clear, 

662 

V. 

V.  Cleworth, 

568 

V. 

V.  Clifton, 

493 

V. 

V.  Coaks, 

155 

V. 

V.  Cohen, 

183 

V. 

V.  Collingwood, 

136 

V. 

V.  Consistory  Court, 

480 

V. 

V.  Cooke, 

554 

V. 

V.  Corfe  Mullen, 

623 

V. 

V.  Cornforth, 

105,  467 

V. 

V.  Cottle, 

464 

V. 

V.  Cotton, 

218 

V. 

V.  Cousins, 

492 

V. 

V.  Cox, 

439 

V. 

V.  Crawshaw, 

665 

V. 

V.  Cridland, 

181 

V. 

V.  Croke, 

327,  494 

V. 

V,  Crowan, 

393 

V. 

V.  Crump, 

544 

V. 

V.  Cumberland, 

226,  425 

V. 

V.  Cumberworth, 

494 

V. 

V.  Cunningham, 

555 

V. 

V.  Cutbush, 

492,  504 

V. 

V.  Damarell, 

18 

V. 

V.  Darlington  School, 

492,  604 

V. 

V.  Davis,  18,  28,  316, 

453,  465,  500, 

V. 

661,  665 

V. 

V.  Dean, 

339,  341 

V. 

V.  De  Mattos, 

240 

V. 

V.  Denlon, 

681 

V. 

V.  Derby, 

416 

V. 

V.  Derbyshire, 

14,  214 

V. 

V.  Depardo, 

240 

V. 

V.  Devon, 

328 

V. 

V.  Dickenson, 

571 

V. 

V.  Dixon, 

183,  186 

V. 

V.  Dorsetshire, 

328 

V. 

V.  Doubleday, 

575 

V. 

V.  Dove, 

264 

V. 

V.  Dowling, 

408,  442 

V. 

V.  Dovvnes, 

286 

V. 

V.  D'Oyley, 

157 

V. 

V.  Dunne, 

102 

V. 

V.  Dursley, 

346 

V. 

V.  E.  C.  R.  Co., 

327 

V. 

V.  Eastbourne, 

244 

V. 

y.  Edmundson, 

576 

V. 

v.  Edwards, 

102,  333 

V. 

V.  Ely, 

600 

V. 

V.  Epsom, 

91 

V. 

V.  Essex, 

329,  503 

V. 

V.  Everdon, 

410 

V. 

V.  Everett, 

282,  283 

V. 

V.  Eye, 

423,  427 

V. 

V.  Eyre, 

581 

V. 

V.  Farewell, 

226 

V. 

V.  Farrow, 

468 

V. 

Faversham,  658 

Fawcett,  417,  425 

Fell,  216 

Finnis,  326,  431 

Fletcher,  636 

Forbes,  184 

Forncett  St,  Mary,  53- 

Forrest,  606 

Fretwell,  469 

Frost,  527 

Fylingdales,  152 

Gauz,  233 

Gardner,  116 

Gibbons,  184 

Giles,  544 

Gillyard,        _  214 

Glamorganshire,  207 

Glover,  469 

Gould,  665 

Graves,  329 

Gravesend,  641,  642 

Green,  658 

Greene,  523 

Greenland,  294 

Gregory,  666- 

Gritnwade,  468 

Gt.  Bolton,  534,  536 

Gt.  Farringdon,  148 

Gt.  Marlow,  606 

Gt.  Salkeld,  198 

Gutch,  186,  187 

Gwenop.  79,  86 

H.  &  S  R.  Co.,  663 

HadEeld,  468 

Haines,  467 

Hale,  181 

Halifax,  198 

Hall,  94 

Hall  Dock  Co.,  484 

Halloway,  333 

,  Hammond,  123 

Hamstall  Redware,  606 

Hanson,  286 

Hants,  104,  329 

Harden,  268 

Hardy,  468 

Harrald,  156 

Harris,  565 

Harrowgate,  225 

Harvey,  180,  454 

Hastings,  417,  423 

Haughton,  523,  525 

Havering-atte-Bower,  417 

Helton,  105 

Hennah,  461 

Herford,  600- 

Hermann,  467 

Hertford  College,  41 

Hey  wood,  588 

Hicklin,  187 

Higgins,  18- 


TABLE    OF    C.VSES. 

V.  Higginson, 

326 

R.  V.  Luffe, 

136 

V.  Hillinan, 

468 

V.  Liindie, 

658 

V.  Hipswell, 

361,  642 

V.  McCann, 

226 

V.  Hodges, 

570 

V.  Mabe, 

10,  15 

V.  Hodnett,  6,  8,  105 

453, 

466,  467 

V.  Mackenzie, 

699 

V.  Ho-g, 

502,  507 

V.  Maidenhead, 

346 

V.  Hoi  brook, 

187 

V.  Mainwaring, 

13 

V.  Horton, 

184 

V.  Maliinson, 

564 

V.  Hoseason, 

320 

V.  Manchester,                86, 

101, 

225 

V.  How, 

155,  157 

V.  Manch.  Waterworks  Co 

., 

571 

V.  Hiibe, 

338 

V.  Manktelow, 

467 

V.  Hiiglies, 

198, 

604,  638 

V.  Margram, 

14 

V.  Hull, 

596 

V.  Marriot, 

662 

V.  Hiilme, 

405,  530 

V.  Martin, 

338 

461 

V.  Huntingdonshire, 

14,  139 

V.  Mashiter, 

121 

500 

V.  Hyde, 

214 

V.  Masterton, 

128 

V.  Ingall, 

612, 

618,  620 

V.  Mattersey, 

198 

V.  Iiigi)ain, 

529 

V.  Matthews, 

339 

V.  Ingram, 

619 

V.  Maude, 

105, 

467 

V.  Ipstone, 

103 

V.  Maulden, 

346 

V.  Ipswich  Union, 

369 

V.  Mawgan, 

631 

V.  James, 

226 

V.  Mayor  of  London, 

308 

V.  Jay, 

225 

V.  Mellingham, 

14 

■V.  Jenkins, 

603 

V.  Merionetshire, 

695 

V.  Jepson, 

468 

V.  Merioneth, 

207 

V.  Jesse  Smith, 

53 

V.  Metr.  Com.  Sewers, 

218 

V.  Johnson, 

53 

304,  636 

V.  Metrop.  Distr.  R.  Co., 

29 

V.  Jones, 

453, 

468,  561 

V.  Middlesex, 

139, 

329 

V.  Jordan, 

46S 

V.  Middlesex  JJ., 

259, 

269 

V.  Kent, 

139,  600 

V.  Midland  R.  Co., 

554, 

572 

V.  Kerrison, 

600 

V.  Mildenhall, 

122 

V.  Kershaw, 

511 

V.  Mill, 

350 

375 

v.  Keyn, 

240, 

241,  521 

V.  Milledge, 

154 

V.  Kilvington, 

200 

V.  Millis, 

4 

V.  King, 

339,  469 

V.  Mills, 

600 

V.  Kingston, 

326 

V.  Milverton, 

77 

V.  Kippy, 

467 

V.  Moah, 

64 

V.  Knapp, 

277 

V.  Monck, 

343 

V.  Larabe, 

344 

V.  Moure, 

180 

V.  Lancashire, 

616 

V.  Morgan, 

693 

V.  Lancashire  JJ., 

417,  431 

V.  Morris, 

345 

684 

V.  Land  Tax  Com., 

343 

V.  Mortlake, 

412 

V.  Lawrence, 

467 

V.  Moseley, 

213 

V.  Leeds, 

385 

V.  Mount, 

237 

V.  Leicestershire, 

628 

V.  Murrow, 

565 

V.  Lesley, 

240 

V.  Mnrsley, 

201 

V.  Leverson, 

44,  503 

V.  Mycock, 

184 

V.  I^ewes, 

696 

V.  Myott, 

198 

V.  Lewis, 

240,  540 

V.  N.  Collingham, 

536 

V.  Lichfield, 

563 

V.  N.  Curry, 

121 

V.  Lindsay, 

600 

V.  Neath, 

572 

V.  Linford, 

326 

V.  Newark, 

258 

V.  Little  Coggleshall, 

201 

V.  Newman, 

461 

V.  Llangian, 

267,  536 

V.  Nicholson, 

121 

V.  Lloyd, 

468 

V.  Norfolk,            416,  423 

424 

489 

T.  Lofthonse, 

620 

V.  Norllileach, 

276 

278 

V.  London  JJ., 

681 

V.  Norwich, 

626 

V.  Long, 

635 

V.  O'Connor, 

570 

V.  Loom, 

554 

V.  Oldham, 

78 

526 

V.  Lopes, 

240 

V.  Olifier, 

184 

V.  Loxdale, 

54,  493 

V.  Owen, 

96 

TABLE   OF   CASES. 


E.  V. 

V. 
V. 


Owens, 

Oxford, 

Oxford  (Bp.) 

Oxfordshire, 

Oxley, 

Papworth, 

Paty, 

Pawlett, 

Payne, 

Pearce, 

Pease, 

Pem  bridge, 

Percy, 

Pliillips, 

Pick  ford, 

Pierce, 

Piikington, 

Pinder, 

Plowriglit, 

Ponsonl)y, 


154 

69,  123 

421,  422,  426 

616 

658 

103 

581 

489 

575 

511 

4,  597 

39,  103,  482 

87 

350,  415 

15,  628 

83 

136 

92,  614 

213 

226 


Poor  Law  Comm'rs,   8,  299,  540, 
541 


Porter, 

Portsea, 

Poyuder, 

Pratt, 

Preston, 

Price, 

Prince, 

Pugh, 

Purdey, 

Eead, 

Richards, 

Robins, 

Robinson, 

Rochester, 

Rose, 

Riindle, 

Russell, 

S.  Wales  R.  Co., 

S.  Weald, 

Saddlers'  Co., 

Safiron, 

Sainsbury, 

Salisbury, 

Salop, 

Saltren, 

Sattler, 

Scaife, 

Scott, 

Seberg, 

Sedgley, 

Senior, 

Sevenoaks, 

Shee, 

Shepherd, 

Shiles, 

Shrewsbury, 

Silvester, 

Skeen, 

Slator, 


166 
377 
124 

469,  534 
103 
547 
184 
304 
104 
346 
661 

184,  467 

315,  658,  671 

620 

179,  492 

166 

92,  266,  467,  673 

214,  602 

423,  528 
120 
553 
152,  660,  661 
301 
548 
507 
240 
502 

500,  589 
240 
555 
277 
328 
226 
225 

350,  415 

14,  575 

568 

7,  34,  343,  346 

26,  529 


R.  V.  Sleep,  183 

V.  Smith,        18,  147,  148,  462,  513. 
541,  604,  636,  689,  696 
V.  Somersetshire,  214 

V.  Southampton,  292 

V.  Speed,  182 

V.  Spratley,  577 

V.  Spurrell,  124 

V.  St.  Albans,  214 

V.  St.  George's,  Han.  Sq.,  292 

V.  St.  George's  Union,  69 

V.  St.  Giles,  105 

V.  St.  Gregory,  359 

V.  St.  James,  Westra'r,         218,  304 
V.  St.  Martin's,  225 

V.  St.  Mary,  157,  377 

V.  St.  Matthew,  155 

V.  St.  Nicholas,  359 

V.  St.  Peter's,  14 

V.  St.  Sepulchre's,  198,369 

V.  Staffordshire,   8,  14,  17,  357,  489 
"         "  453 

696 
140,  183,  186 
565 
225,  226 
182 
606 
695 
658 
10,  14 
461,  636 
661 
406 
122 
346 
564 
489 
17,  328 
524,  525 
681 
206,  601 
207 


Siainforth, 

Stepney, 

Stephens 

Stevens, 

Stewart, 

Stimpson, 

Statfold, 

Stock, 

Stoke  Bliss, 

Stoke  Damerel, 

Stone, 

Storr, 

Strachan, 

Stratford, 

Siretfield, 

Striignell, 

Surrey, 

Sussex, 

Sutton, 

Swann, 

Sykes, 

Sylvester, 

Tart, 

Tatlock, 

Taunton,  St.  James, 

Thackwell, 

Thornhill, 

Threlkeld, 

Tliurston, 

Tillingham, 

Timmins, 

Tinkler, 

Tithe  Com'rs, 

Tewkesbury 

Todmorden, 

Toke, 

Tolley, 


140 
471 
254 
328 
637 
258 
700 
198 
467 
182 
416,  417 
154 
622 
453 
13 


Tonbridge  Overseers,    7,  68,  337 
Tone,  529 

Toole,  329 


lii 


TABLE    OF   CASES. 


K.  V.  Totnes,  606 

V.  Totnes  Union,  603 

V.  Tratlord,  328 

V.  Trew,  183 

V.  Trustees,  53 

V.  Tucker,  561 

V.  Turvey,  446 

V.  Un.  of  Cambr,,  603 

V.  Ush worth,  69 

V.  Vandeleer,  596 

V.  Varlo,  500 

V.  Verelst,  610 

V.  Vine,  383 

V.  Wagstaff,  468 

V.  Walford,  251 

V.  Wallis,  40,  500 

V.  Walsall,  207 

V.  Walter,  183,  186 

V.  "Warwick,  137,  480 

V.  AVarwickshire,  325 

V.  Wash  brook,  618 

V.  Watson,  8 

V.  Watts,  328 

V.  Wavell,  206 

V.  Wells,  697 

V.  Weobley,  200 
V.  West  Riding,    30,  328,  489,  546, 

681 

V.  Weymouth,  154 

V.  Whiteley,  277 

V.  Widdop,  636 

V.  Wigan,  346 

V.  Wigg,  315 

V.  Wilcock,  74,  435 

V.  Wilkes,  203 

V.  Wilson,  468 
V.  Williams,                     73,  438,  468 

V.  Wilmett,  183 

V.  Wimbledon  Loc.  B'd,  155 

V.  Windsor,  538 

V.  Win  wick,  606 
V.  Wood,                        113,  214,  492 

V.  Woodland,  198 

V.  Wood  row,  183 
V.  Worcestershire,           8,  218,  267 

V.  Workshop  B'd,  617 
V.  Wright,              74,  223,  231,  662 

V.  Wycombe,  495 

V.  Wymondham,  136 

V.  York,  l'l6 

V.  York  &  M.  R.  Co.,  495 

V.  Yorkshire,  328,  636 

V.  Youle,  314,  321 

V.  Younger,  439 

V.  Zulueta,  38,  237 

R.  R.  Co.  V.  Hecht,  432 

V.  Lacey,  244 

V.  McClure,  713 

V.  Whitton,  222 

R.  R.  Co's  V.  Gaines,  509 

Rachel  (Sch'r)  v.  U.  S.,  681 


474, 


427, 
568, 


400,  57 


385, 


Radnorshire  B'd  v.  Evans, 
Raeburn  v.  Andrews, 
Railroad  v.  Harris, 
Raleigh,  &c.,  R.  R.  Co.  v.  Reid, 

494, 
Ralston's  A  pp., 
Ralston  v.  Crittenden, 

V.  Oursler, 
Ramsey  v.  Gould, 

V.  Toy, 
Randall  v.  Pryor, 

V.  Randall, 
Randolph  v.  Bayne, 
V.  Mil  man, 
V.  State, 
Rankin  v.  Tenbrook, 
Ransom  v.  Hays, 
Kashleigh,  Exp., 
Rath  bone  v.  Bradford, 
Rath  bun  v.  Acker, 
Raudubaugh  v.  Shelley,  212,  292, 
Raudenbusch's  Pet'n, 
Raw  ley  v.  Rawley,  74,  102, 

Rawson  v.  State,  29, 

Ray,  Exp.,  51, 

V.  R.  R.  Co., 
V.  The  Henry  Ilarbeck, 
Read  v.  Edwards, 

V.  Ingham,  484, 

V.  Smith, 

V.  Story,  266, 

Reading  v.  Savage, 

Overs'rs  v.  Cumru  Over- 
seers, 
Readshaw  v.  Balders, 
Ready  v.  Fitzgerald, 

V.  Huebner, 
Reardon  v.  Searcy, 
Rebeckah,  The, 
Receiver,  Pol.  Distr.,  v.  Bell, 
Receivers  v.  Sav.  B'k, 

of  People's  B'k  v.  Pat- 
erson  Sav.  B'k, 
Red  fern,  Ee, 
Redgate  v.  Haynes, 
Redpath  v.  Allen, 
Red  Rock  v.  Henry, 
P.eed's  Af)p., 
Reed  v.  Beall, 
V.  Clark, 
v.  Crocker, 
V.  I);ivis, 
V.  Eastman, 
v.  Northfield, 
v.  Wiggins, 
Reeder  v.  Holcomb, 
Reeves  v.  White, 
Regent  U.  S.  Stores,  Re, 
Rehfuss  V.  Gross, 
Reiche  v.  Smythe, 
Reichly  v.  Maclay, 


570 
589 
222 
69, 
496 
763 
429 
756 
573 
451 
593 
597 


281, 
288, 


179,  453, 


472 
577 
486 
191 
399 
701 
495 
294 
763 
104 
451 
252 
217 
349 
534 
569 
644 
519 
765 

641 
657 
101 
191 
391 
495 
312 
143 

66 
432 
468 
641 
286 
354 
381 
435 
641 
457 
191 
457 
371 
123 
215 
635 
418 
344 
189' 


TABLE   OF   CASES. 


liii 


Heiff  V.  Com'th,  341 

R'iford  V.  Knight,  54,  56 

Eeigelsberger  v.  Stapp,  547 

Reimer's  App.,  347 

Eeia  v.  Lane,  95,  479 

Eeis  V.  Graff,  396,  397 

Reiser  v.  Sav.  Fund  Ass'n,  11 

Reish  V.  Com'th,  197 

Reiaington  v.  Stevens,  102 

Remmington  v.  State,  10,  456 

Removal  Cases,  220 

Renick  v.  Boyd,  570 

Renner  v.  Bennett,  256 

Renwicit  v.  Morris,  216,  666 

Republic  V.  Haaiilton,  497 

Restall  V.  L.  &  S.  VV.  R.  Co.,  684 

Reuss  V.  Bos,  153 

Reynolds  v.  Baldwin,  45 

V.  Hall,  369 

V.  Holland,           8,  400,  436 

V.  McKinney,  189 

V.  Robinson,  169 

Eheeling's  App.,  487 

Rheiu  B'ld'g  Ass'n  v.  Lea,  281,  301 

Rhoads'  App.,  195 

Rhoads  v.  B'ld'g  As.s'n,  271 

Rhode  Island  v.  Massachusetts,       227 

Rhodes  v.  Smethurst,  350 

Ricard  v.  Williams,  27,  448 

Rice  V.  R.  R.  Co.,      5,  6,  44,  108,  173, 

495,  497,  685 

V.  Riiddiman,  693,  702 

Rich  V.  Flanders,  376 

V.  Keyser,  534,  535 

Richards  v.  Dagget,  343 

V.  Fox,  645 

V.  McBride,  14 

V.  Patterson,  282 

V.  Rote,  394 

Richardson,  Be,  693,  701 

V.  Cook,_        363,  384,  389 

V.  Enswiler,  474 

V.  R.  R.  Co.,  244 

V.  Richardson,  102,  106 

Richens  v.  Wiggins,  291 

Richie  v.  Smith,  646 

Richmond  v.  N.  L.  R.  Co.,  497 

Richter  v.  Hughes,  493 

Rickett  V.  Met.  R.  Co.,  534 

Riddick  v.  Governor,  401 

V.  Walsh,  438 

Riddle's  App.,  477 

Eider  v.  Kidder,  120 

V.  Maul,  486 

V.  Wood,                      .  185 

Ridgway  v.  Warton,  482 

Ridler  v.  Punter,  359 

Ridsdale  v.  Clifton,  40,  96 

Rigg  V.  Wilton,  517,  518 

Riggs  V.  Brewer,         59,  60,  269,  281, 

282,  287 


Riggs  V.  Pfister, 

60,  287 

Riley  v.  Gregg, 

192 

V.  Head, 

122 

Ripley  v.  Gifford, 

271 

V.  Walerworth, 

445 

Rippon's     Ex'rs    v.    Townsend's 

Ex'rs,  99 

Risher  v.  Thomas,  593 

Rishton  v.  Whatmore,  482 

Rising  V.  Patterson,  199,  405 

Ritchie  v.  Franklin  Co.,  427 

River  Wear  Com,  v.  Adamson,         33 

Rivers  v.  Adams,  588 

Road  V.  R.  Co.,  597 

Roane  v.  Innes,  144 

Robb  V.  Wash'n  Co.,  227 

Robbins  V.  R.  R.  Co.,  67.517 

V.  State,  281.300 

Roberts  v.  Egerton,  47,  536- 

V.  Fahs,  282 

V.  Goff,  446 

V.  Orchard,  403 

V.  Phillips,  483 

V.  Pillow,  476 

V.  Pippen,  297 

V.  Price,  491 

V.  Wetherall,  542 

V.  Williams,  123 

V.  Yarboro,  257 

Robertson,  Exp.,  637 

V.  Robertson,  328 

Robinson  v.  Briggs,  125 

V.  CoUingwood,  188 

V.  Eagle,  733 

V.  Emerson,  284,  317 

V.  Green,  657 

V.  Varnell,  103 

Robson,  Re,  197 

Roby  V.  West,  644,  692 

Rochdale  Canal  Co.  v.  King,  211,  215 

Rochester  v.  Barnes,  259 

V.  Pettinger,  130 

B'k  V.  McLeodCo.,         192 

Rochfort  V.  Atherly,  329 

Rockwell  V.  Clark,  422 

Roiidam  v.  Morley,  476 

Rodebaugh  v.  Sanks,       115,  619,  621, 

699 

Roderick  v.  Aston  L.  B'd,  598 

Rodgers  v.  Gibson,  99 

Rodrigues  v.  Melluish,  12 

RoflSgnac  Str,  475 

Rogers'  Case,  708 

Rogers  v.  Goodwin,  7,  501 

V.  Rathbun,  446 

V.  Smith,  333 

v.  Vass,                 257,  258,  693 

V.  Watrous,  271,  281 

Roles  V.  Rosewell,  276 

Rolland  v.  Commonwealth,  412 

Rolle  V.  Whyte,  60,  627 


liv 


TABLE   OF   CASES. 


Rolls  V.  St.  George,  Soutbw.,  164,  519 

Romney  Marsh  v.  Trinity  House,  674 

Ronkendorff  v.  Taylor,  545 

Rood  V.  Ry.  Co.,  681 

Rooke's  Case,  203 

Roosevelt  v.  Godard,  246 

V.  Maxwell,  112,  113 

Rose's  Est.,  617 

Rose  V.  Governor,  233 

V.  Groves,  674 

V.  Hiiiley,  234 

V.  Miller,  674 

Rosenplcenter  v.  Rossele,  7 

Rosenthal  v.  Wehe,  392 

Ross  V.  Doe,  144 

v.  Green,  235 

V.  Price,  666 

V.  Reddick,  703,  706 

Rosseter  v.  Cahlmann,  235 

Rossiter  V.  Miller,  483 

Rothes  V.  Kirkaldy,  343 

Round  V.  Bell,  291 

Rounds  V.  Way  mart,  300 

Roundtree,  Exp.,  747 

Roup's  Case,  735 

Routledge  v.  Low,  243,  244 

Routsong  V.  Wolf,  384 

Rowell  V.  R.  R.  Co.,  392 

Rowning  v.  Goodchild,  668 

Royal  Brit.  B'k  v.  Turquand,  627 

Royal  Mail  Co.  v.  Braham,  555 

Ruckmaboye  v.  Lullooboy,  402 

Rue  v.  Alter,        _  174,  486 

Ruggles  v.  Illinois,  36 

V.  Keeler,  106 

V.  Wash'n  Co.,  45,  95 

Rumsey  v.  Berry,  194 

v.  N.  E.  R.  Co.,  632 

Rupp  V.  Swineford,  105 

Russell,  Exp.,  203,  224 

V.  Cage,  491 

V.  Prat,  438 

V.  University,  475 

V.  Wheeler,  143,  213 

Rustmogee  v.  R.  R.  Co.,  227 

Rulhbun  v.  Acker,  98,  1:^9 

Rutherford  V.  Greene,  111,368 

V.  Maynes,  488,  490 

Rutland  v.  Mendon,  272,  534 

Ryall  V.  RoUe,  86 

V.  Rowies,  86,  120 

Ryan  v.  Hoffman,  363 

V.  State,  252 

V.  Vanlandingham,  619 

Ryder  v.  Wilson's  Ex'rs,  375 

Ryegate  v.  Wardsboro,  45, 334, 353, 401 


Sadler  v.  Leigh, 
Saffron  Hill,  Exp., 
Sage  V.  McLaughlin, 
Sailor  V.  Hertzog, 
Sale  V.  Lambert, 
Salem  Tp.,  Road  in 


544 
126 
638 
160 

4H3 
616 


S. 

Sacramento  v.  Bird, 


269 


Tump.,  &c.,  Co.,  V.  Hayes, 

216,  663.  669 
Salkeld  v.  Johnson,         41,  42,  73,  84, 

85,  86 
Salmon  v.  Burgess,  701 

Salomons  v.  Miller,  526 

Salter's  Co.  v.  Jay,  82,  308 

Saltoun  v.  Advoc.-Gen.,  113 

Sampeyreac  v.  U.  S.,  389 

Sams  V.  King,  252 

Samuel  Strong,  The,  509 

Samuels  v.  Com'th,  332 

San  Francisco  v.  Hazen,  29,  44 

&c.,  R.  R.  Co.,  V. 
State  Board  of 
Eqnal'n,  726 

San  Theodoro  v.  San  Theodoro,      234 
San  Pedro,  The,  255 

Sanders  v.  Com'th,  322,  688,  702 

V.  Johnson,  359 

V.  State,  689 

Sandiman  v.  Breach,  568 

Sandys,  Exp.,  604 

Santa  Clara  Co.  v.  R.  R.  Co.,  730 

Santos  V.  Illidge,  38,  237 

Satterlee  v.  Matthewson,         381,  382 
Saunders  v.  Carroll,  363 

V.  S.  E.  R.  Co.,  125,  491 

Sav.  B'k  V.  U.  S.,  254 

Saving  Fund  v.  Yard,  117 

Sav.  Inst'n  v.  Makin,  254,  256 

Sawyer,  Exp.,  713 

V.  State,  344 

Sayre  v.  Wisner,  367 

Scadding  v.  Eyles,  388 

Scaife  v.  Stovall,  173,  487 

Scales  v.  Pickering,  494 

Scaltock  V.  Harston,  599 

Scanlan  v.  Childs,  505 

Scarborough  v.  Rural  Anth'y,        538 
Schall  V.  Bowman,  758 

Scheftels  v.  Tabert,  272,  694 

Schenley's  App.,  542,  562 

Schepp  V.  Reading,  152,  498,  550 

Schlaudecker  V.Marshall,  115,209,312 
Schmidt,  Exp.,  713 

V.  Armstrong,  542 

Schober  v.  S.  F.  &  L.  Ass'n,  750 

Schoff  V.  Impr't  Co.,  126 

School  B'd  V.  Islington,  126 

Dir's  V.  B'k,  101 

V.  Carlisle  B'k,  117 

Distr.  No.  5  v.  Sch'l 
Dir'sDistr.  No.  10,  411 

Distr.  V.  Whitehead,  269 


TABLE   OF   CASES. 


Iv 


Schoft  V.  Harvey,  127 

iSclireider  v.  Hosier,  518 

Schrifer  v.  Wood,  4,  101,  106 

Scluitt  V.  Evans,  191 

Schuyler  Co.  v.  Mercer  Co.,     174,  226 

335,  427 

Schuylkill,  &c.,  Co.  v.  Decker,  632,  633 

Nav.  Co.  v.  Loose,  142 

Schwenke  v.  B.  R.  Co.,     281,  298,  695 

Schwieke's  App.,  418 

Scotch  Widows'  Fund  v.  Craig,      662 

Scolt  v.  Avery,  211 

V.  Berkely,  523 

V.  Cora'th,  681 

V.  Guthrie,  38 

V.  Legg,  136 

V.  Pacquet,  454 

V.  Royal  Wax  Co.,  555 

V.  Searles,  54 

V.  Uxbridge,  &c.,  R.  Co.,        431 

Scotten  V.  State,  634,  636 

Scowden's  App.,  735,  738 

Scranton  Sch.  Distr.  App.,  713, 

734,  764 

Scrimshire  v.  Scrimshire,  236 

Seale  v.  Mitchell,  508 

Seamnn  v.  Carter,  363 

Searcy  v.  Tillman,  213 

Sears  v.  Wilison,  616 

Second  Manh.  B.  A.  v.  Hayes,         615 

N.  y.  B.  Ass'n  V.  Gallier,  492 

Seely  v.  Ohio,  206 

Seidel's  Load,  618 

Seidenbender  v.  Charles,      82,  86,  644 

Seiders'  App.,  131,  132 

Seifried  v.  Com'th,  283,  299 

Seiple  v.  Elizabeth,  427,  429 

Selkrig  v.  Davies,  241 

Selleck  v.  Selleck,  179 

V.  Com.  Council,  594 

Selman  v.  Wolf,  336 

Selmes  v.  Judge,  404 

Seneca  Co.  V.  Allen,  247 

Severance  v.  C.  S.  Supply  Ass'n,     390 

Sewall  V.  Jones,  474 

Seward  v.  The  Vera  Cruz,  298 

Sewell  V.  Taylor,  561 

Seylar  v.  Carson,  361 

Seymour  v.  Hubert,  332 

V.  Judd,  616,  630,  635 

Shackleford  v.  Ward,  189 

Shackell  v.  Rosier,  656 

Shaffer  v.  Kintzer,  461 

Siiaftesbury  v.  Russell,  211 

Shaftoe's  Charity,  Re,  329 

Shain  v.  Searcy,  189 

Shallow  V.  Salem,  395 

•Sharp,  Exp.,  24 

V.  Biankenship,  381 

V.  New  York,     _  143 

V.  Speier,  '  475 


Sharpless  v.  Philad'a, 
Siiavv  V.  Macon, 
V.  Morley, 
V.  R.  R.  Co., 
V.  State, 
Shawnee  v.  Carter, 
Shay's  App., 
Shear  v.  Columbia, 
Shears  v.  Jacobs, 
Sheetz  v.  Han  best, 
vSheil,  Exp., 
Shelby  v.  Guy, 
Sheldpn  v.  R.  R.  Co., 

v.  Wright, 
Shellv's  Case, 
Shehon  v.  TifBn, 
Shepard  v.  Coinra'rs, 
Siiepardson  v.  R.  R.  Co., 
Shepherd  v.  Bradford, 
V.  Hall, 
v.  Hills, 
V.  Hodsman, 
V.  Peck, 
V.  People, 
Sheppard  v.  Gosnold, 
Sherborn  v.  Wells, 
Sheridan  v.  Salera, 
Sherman  Co.  v.  Simons, 

V.  Story, 
Sherwin  v.  Biigbee, 
Sherwood  v.  Ray, 
Shiels  v.  Rait, 

V.  G.  N.  R.  Co., 
Shillito  V.  Thompson, 
Shipman  v.  Henbest, 
Shipperdson's  Trusts, 
Short's  Est., 
Short  V.  Hubbard, 

V.  McCarthy, 
Shortrede  v.  Cheek, 
Shrew  v.  Jones, 
Shrewsbury  v.  Beasley, 
V.  Boylston, 


738,  752,  754 
248 
678 
174 
707 

213,  491 
371 
287 
590 
169 

472,  473 
106 
597 
545 
544 
222 
671 
263 
226 
201 
663 
301 
382 

362,  376 
500 
528 
503 
706 
43 
501 
102 
564 
124 

492,  575 

215,  693 

493 

242 

458 

13 

37,  482 

115 

87,88 

411 


Earl  of,  V.  Scott,      42,  74, 
278,  522,  524 
Shriedley  v.  State,  77 

Shrimpton  v.  Sidm.,  &c,,  R.  Co.,     431 
Shriver  v.  State,  133 

Shuffleton  v.  Hill,  378 

Shumaker  v.  Johnson,  615 

Shuttleworth,  Ee,  614 

V.  Cocker,  328 

V.  Le  Fleming,    46,  563 
Sibley  v.  Smith,  35,  174,  475 

Sickles  V.  Sharp,  459 

Siemens  v.  Sellers,  400 

Sifred  v.  Com'th,  318,  319 

Sika  V.  R.  R.  Co.,  695 

Sill  V.  Worswick,  241 

Sillence,  Exp.,  543 

Silver  v.  Ladd,  136 


Ivi 


TABLE   OF   CASES. 


Simmons  v.  Crook,  105 
V.  Jacobs,  703 
V.  Powder  Works,  352 
Simon  v.  Moss,  304 
Simonds  v.  Barton,  764 
V.  Powers,  48,  400 
Simonson,  Exp.,  427 
V.  Durfee,  551 
Simonton,  Exp.,  430 
Simpson  v.  Blues,  30,  220 
V.  Keady,  681 
V.  S.   Staffordsh.   Water- 
works, 495 
V.  Unwin,  402 
Simpkin  v.  Birmingham,  15 
Simpkins,  Exp.,  551 
Simplot  V.  Ry.  Co.,  229 
Sims  V.  Bean,  451 
V.  Dough,  251 
V.  Thomas,                120,  148,  291 
Singer  v.  Hasson,  391 
Manuf.  Co.  v.  Rook,  155 
V.  Wright,  730 
Sinnott  v.  Whitechapel,  327 
Sipe  V.  Finarty,  194 
Siter  V.  Sheets,  645 
Skelton  v.  Bliss,  642 
Skinner  v.  Usiier,  528,  561 
Slack  V.  Jacob,                   246,  248.  744 
Slayton  v.  Hulings,  608 
Sleeper  v.  Dougherty,  140 
V.  Goodwin,'  21,  492 
Slocum  V.  Fincher,  391 
V.  Slocum,  356,  635 
Smalley  v.  Doughty,  192 
Smead  v.  Williams,  228 
Smedliury  v.  Simpson,  192 
Smets  V.  Weathersbee,  701 
Smith,  Exp.  (3  Q.  B.  D.),  206,  601 
(40  Cal.),  259,  288 
V.  Adams,  46,  147 
V.  Allen,  541 
V.  Arapahoe  Dist.  Ct.,  683 
V.  Aud.-Gen.,  363 
V.  Bank,  191 
V.  Banker,  681,  689 
V.  Barnham,  570 
V.  Bell,  353 
V.  Birmingham,  225 
V.  Brown,         65,  185,  220,  540 
V.  Drew,  667 
V.  Ferris,  126 
V.  Fox,  13 
V.  G.  W.  R.  Co.,  343 
V.  Gilder,  381,  382 
V.  Godfrey,  647 
V.  Hard,  620 
V.  Helmer,  37,  134 
V.  Hickman,  281 
V.  Hiester,  631 
V.  Hoyt,  679,  680 


.'^mitli  V.  Hudson, 
V.  Huggett, 
V.  Jones, 
V.  Keats, 
V.  Kirby, 


48$ 
641 
619 
226 

485 


V.  Lindo,  60,  463,  500,  649 

V.  Lockwood,  216,  676 

V.  Look,  597 

V.  McGinty,  172 

V.  Mawhood,  651 

V.  Motlalt,       142,  174,  459,  478 

V.  Packard,  379 

V.  People,     54,  58,  65,  149,  220, 

285,  297,  335 

V.  Philadelphia,  96 

V.  R.,  603 

V.  Randall,  49,  400 

V.  R.  R.  Co.,  217 

V.  Robertson,  510 

V.  Rues,  25 

V.  Saxton,  360,  361 

V.  Smiili,  51,  700 

V.  Spooner,  474 

V.  State,  9,  510,  318,  567 

V.  Stevens,  142 

V.  Stewart,  698 

V.  Til  ley,  603 

V.  Walton,  471 

V.  Waterbury,  717 

V.  Whitraore,  211 

V.  Wiicox,  162,  181 

Smithett  v.  Blythe,  523 

Smithie  v.  Garth,  248 

Smyth  V.  Darley,  606 

Snyder  v.  Warren,  543 

Snoddy  v.  Cage,  517 

Snell  V.  Bridgewater,  &c.,  Co.,  97,  213, 

281 
Sneed  v.  Com'th,  7 

Society,  &c.,  v.  New  Haven,  117 

for  Prop.,  &c.,  V.  Wheeler,  367 
Solarte  v.  Melville,  193 

Solomon  v.  Co-op.  Co.,  101 

V.  Dreschler,  644 

Somerset  v.  Dighton,         115,  343,  363 
Somerset!, /;i  ?-e  Duke  of,  169 

Somerville  v.  Winbish,  704 

Soon  Hing  v.  Crowley,  42 

Souter  v.  The  Sea  Witch,  349 

South  Carolina  v.  Gaillard,  683 

v.  Stoll,  307 

of  Ireland  Collierv  v.  War- 
die,  '  590 
Ottawa  v.  Perkins,                  520 
Platte  Land  Co.  v.  Buffalo,  604, 
713 
Southam,  He,                                     547 
Southampton  Dock  Co.  v.  Richards,  624 
Southw.  R.  R.  Co.  V.  Cohen,      25,  465 
Southwark  B'k  v.  Com'th,  43,  259,  261 
Sower  V.  Philadelphia,                     703 


TABLE   OF   CASES. 


Spademan's  Case, 

572 

State  V.  Adams, 

510 

Spalding  v.  Preston, 

644 

V.  Addington, 

682 

Spangler's  App., 

216 

V.  Alexander, 

265 

Sparrow  v.  Kohn, 

509 

V.  Allen, 

604,713 

Speck  V.  Gurnee, 

178 

V.  Allaire, 

681 

Speckert  v.  Louisville, 

681,  682 

V.  Anderson, 

213 

Speidel's  App , 

634 

V.  Andrews, 

265 

Spencer  v.  Geissman, 

164 

V.  Andriana, 

509 

V.  Metrop.  B'd, 

52,69 

V.  Arledge, 

227 

V.  State, 

259,  262 

V.  Arlin, 

103 

S^engler  v.  Snapp, 

191 

V.  Asiher, 

241 

Spering  v.  Laughlin, 

178 

V.  Atwood, 

363,  367 

Spicer  v.  Bacon, 

614 

V.  Auditor, 

363 

V.  Barnard, 

162 

V.  Babcock,                  2£ 

,  54,  282 

Spikes  V.  Burgess, 

138 

V.  Bacon, 

186 

Spinning  v.  Build.,  &c.,  Ass'n 

395 

V.  Bailey, 

703 

Sprague  v.  Birdsall, 

453,  495 

V.  Baker  (9  Rich.), 

609 

Spring  V.  Collector, 

257 

V.  Baker  (38 'Wis.), 

610 

V.  Kussell, 

216 

V.  Baldwin, 

694 

&c.,Works  V.  San  Francisco,  695 

V.  Bancroft, 

230 

Str.,  Re, 

269,  637 

V.  Banks  (The),       682, 

700,  701 

Springfield  v.  Edwards, 

714,  719 

V.  Barrow, 

276 

V.  E.  R.  Co., 

225 

V.  B'd  of  Pub.  W'ks, 

352 

Sprowl  V.  Lawrence, 

145,  400 

V.  Beasley, 

410 

Spyve  V.  Topham, 

432 

V.  Bergen, 

708 

Squires'  Case, 

77 

V.  Berry, 

281,  294 

St.  Bariholomew's  v.  Wood, 

635 

V.  Bishop,           59,  281, 

282,  287 

Charles  Co.  v.  Powell, 

229 

V.  Blair, 

142,  352 

Cross  V.  Howard, 

113 

V.  Blake, 

259,  282 

Johnsbury  v.  Thompson, 

764 

V.  Blakeman, 

363 

Leonard's  v.  Franklin, 

116,  555 

V.  Bond, 

702 

Losky  V.  Green, 

514 

V.  Boogher, 

274 

Louis  V.  Laughlin, 

490.  573 

V.  Boon, 

31 

V.  Goebel, 

456,  457 

V.  Boyle, 

692 

V.  Ins.  Co., 

281 

V.  Bradford, 

364 

Co.  V.  Sparks, 

619 

V.  Brandt, 

412 

Gas  L.  Co.  V.  St.  Louis,    234 

V.  Brewer, 

515,  688 

&c.,  R.  R.  Co.  V.  Cii 

irk,  9,  22 

V.  Brewster, 

36 

Ry.  Co.  Williams,     713 

V.  Brookover, 

683 

Mary  v.  Radcliffe, 

122 

V.  Brooks, 

12,  108 

Martin  v.  New  Orleans, 

289 

V.  Bryson, 

181 

Peter's  Ch.  v.  Scott, 

45 

V.  Buchanan  Co.  Ct,, 

145 

Sepulchre's,  Exp., 

11,  23 

V.  Camden, 

712 

Werburgh  v.  Hutchinson 

15 

V.  Canterbury, 

510 

Stable  V.  Dixon, 

218 

V.  Carney, 

617 

Stacey  v.  Lintell, 

136 

V.  Cazeau, 

75 

Stafford  v.  B'k, 

616 

V.  Chambers, 

704,  705 

V.  C.  &  B.  Co., 

616 

V.  Chambersburg, 

542 

V.  Creditors, 

272,  537 

V.  Chase, 

493,  503 

Stainton  v.  Woolrych, 

598 

V.  Clark,       54,  58,  251 

537,  560 

Stairs  v.  Peaslee, 

101 

V.  Clevenger, 

328 

Stallard  v.  Marks, 

195 

V.  Click, 

619,  701 

Stambaugh  v.  Smith, 

109 

V.  Cobaugh, 

235 

Stamp,  Exp., 

180 

V.  Com'rs  (26  Ohio  St.) 

671 

Standing  v.  Alford, 

693 

V.  Com'rs  of  R.  R.  Tax' 

Q,  71,  560 

Stanford  v.  Peirce, 

333 

V.  Co.  Com'rs, 

517 

Scaniels  v.  Raymond, 

400 

V.  Co.  Ct., 

273 

Stanley  v.  Dodd, 

186,  470 

V.  Cole, 

615,  681 

V.  Nelson, 

644 

V.  Conklin, 

582 

V.  Wharton, 

666 

V.  Conkling, 

269,  680 

Slate  V.  Acuff, 

410 

V.  Connell, 

.      365 

Iviii 


TABLE  OF   CASES. 


State  V. 


V.  Connor, 

558 

Slate  V.  Judge, 

36,  272,  551 

V.  Cook, 

501 

V.  Judges  C.  P., 

705 

V.  Corwin, 

216 

V.  Kelly, 

288 

V.  Covington, 

756 

V.  King, 

135,  400 

V.  Crawford, 

692 

V.  Kinne, 

224,  481 

V.  Cross, 

681 

V.  Lacrosse, 

263 

V.  Crosset, 

181 

V.  Lee, 

433 

V.  Cunningham, 

273 

V.  Liedke, 

8,  435 

V.  Curraii, 

233 

V.  Littlefield, 

212,  364 

V.  Currier, 

600 

V.  Lloyd, 

681 

V.  Curry, 

485 

V.  Lofiin, 

216 

V.  Dale, 

477 

V.  Long, 

681,  682 

V.  Davis, 

115 

V.  Lovell, 

453 

V.  Dean, 

595 

V.  McAllister, 

707 

V.  Delesdenier, 

703 

V.  McCullongh, 

477,  559,  707 

V.  Dickinson, 

59 

V.  Mctiarrv, 

573 

V.  Dillon, 

511,  717,  780 

V.  McKay,' 

163 

V.  Dolierty, 

7)3 

V.  McKenney, 

236 

V.  Doian, 

713 

V.  McLean, 

619,  621 

V.  Donehey, 

595 

V.  Mace, 

714,719 

V.  Douglass, 

288,  631 

V.  Mac.  .n  Co.  Ct., 

292,509,517 

V.  Draper, 

281 

V.  Main, 

450,  541 

V.  Diiggan, 

400 

V.  Mann, 

108 

V.  Duval  Co., 

764 

V.  Manning, 

145,  392,  448 

V.  Ellis, 

37 

V.  Marlow, 

612 

V.  Eskridge, 

52H 

V.  Mariindale, 

147 

V.  Fei'gi'son, 

3()3 

V.  Matlock, 

733 

V.  Fertilizer  Co., 

116,  118 

V.  May  berry, 

456 

V.  Fiske, 

491 

V.  Mayor  of  Patterson,         44,  95 

V.  Fitzgerald, 

298,  744 

V.  Merriman, 

756 

V.  Fleming, 

227 

V.  Milburn, 

223 

V.  Fletcher, 

661,  681 

V.  Miller,          264, 

317,521,526 

V.  Forney, 

434 

V.  Mills,            298, 

303,  308,  497 

T.  Gardner, 

180 

V.  Miskimons, 

259 

V.  Garland, 

224 

V.  Mister, 

282 

V.  Garthvvaite, 

54 

V.  Moore,          376 

377,  382, 390 

V.  Gasconade, 

549 

V.  Morristown, 

otiO 

V.  Gillick, 

617 

V.  Morrow, 

273,  281,  556 

V.  Glennj 

755 

V.  Myers, 

412,  415 

V.  Goeize, 

288 

V.  Newark, 

363 

V.  Grady, 

321 

V.  Newton, 

451 

V.  Guinber, 

694 

V.  Nichols, 

38,  41,  377 

V.  Harris, 

271,  609,  620 

V.  Norton,         174 

176,  274,  315 

V.  Hatfield, 

183 

V.  Noyes, 

595 

V.  Hays, 

42,  543 

V.  O'Connor, 

681 

V.  Heidorn, 

252,  260,  702 

V.  Orange, 

437 

V.  Henry, 
V.  Hill, 

468 

V.  Oskins, 

238 

363 

V.  Paddock, 

130 

V.  Hi  1  mantel. 

609 

V.  Parker, 

6GL 

V.  llolman. 

574,  577 

V.  Partlow, 

31 

V.  Holt  Co.  Ct., 

429,  430 

V.  Passmore, 

681 

V.  Horsey, 

317 

V.  Patterson, 

7o5 

V.  Hudson, 

713,  735 

V.  Peary, 

311 

V.  Ingersol, 

265,  681 

V.  Pemberton, 

574 

V.  Inlox.  Liquors, 

712 

V.  Peters, 

455 

V.  Jaeger, 

281,  5o7 

V.  Phelps, 

98 

V.  Jarrett, 

703 

V.  Pitts, 

617 

V.  Jersey  City, 

269 

V.  Pinckney, 

227 

V.  Johnson, 

755 

V.  Pierce, 

317 

V.  Jones,    ' 

616 

V.  Pollard, 

273 

V.  Joiner, 

227 

•  V.  Pool, 

413 

TABLE   OF   CASES. 


HX 


State  V. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 


89,  90 

454,  455,  466 

400 

2ii7,  228 

162 


Popp, 

Powers, 

Poydras, 

Pratte, 

Preston, 

Probasco, 

R.  R.  Co.  (23  Ind.), 

R.  R.  Co.  (35  N.  J.  L.), 

R.  R.  Co.  (36  N.  J.  L.), 

R.  R.  Co.  (2  Sueed.), 

Rack  ley, 


Stale 


Ran  son, 

Recorder, 

Richmond, 

Robey, 

Rogers, 

Rollins, 

Rusk, 

Ryno, 


183 
117 
224 
126 
401 
58 
266 
375 
634 
517 
271,  755 
678 
130 
734 


V.  S.  &  S.  Orph.  Home,  511,  513 

V.  Schaffer,  688 

V.  Sch.  Distr.,  227 

V.  Scndder,  363 

V.  Severance,  501 

V.  Shaw,  54 

V.  Sherman,  706 

V.  Showers,  559 

V.  Slaugiiter,  679 

Smith  (38  Conn.),  392 

Smith  (7  la.),  2"->9 

Smith  (46  la.),  533 

Smith  (67.  Me.),  617 

Smith  ^83  N.  C),  279 
Smith  (8  S.  C),           298,  300 

Smitii  (Tenn.),  4 

Smith  (Tex.),  320 

Soc'y  Est.  Usef.  M.,  5S8 


Solomon, 

Spencer, 

Springfield  Tp., 

St.  Joseph  Co., 

St.  Louis  Co., 

Stein, 

Stephenson, 

Stevenson, 

Stewart, 

Stinson, 

Stockley, 

Stoll, 

StuUer, 

Storey  Co., 

Studt, 

Stumpf, 

Sturgess, 

Sweetser, 

Swope, 

Taylor, 

Teleph.  Co., 

Thompson, 

Tichenor, 


451,  577 

717,730 

54 

227 

127 

363,  364 
74 

298,  30] 

54 

352 

515 

259 

461,  574 
293 
271 
610 
302 
420 
515 
172,  723,  751 
441 
508 
541 


V.  Trenton, 
V.  Troutman, 
V.  Turn  p.  Co., 
V.  Vernon  Co.  Ct., 
V.  Waholtz, 
V.  Washoe  Co., 
V.  Weigel, 
V.  Welsh, 
V.  Whetstone, 
V.  Wliitworth, 
V.  Wilbor, 
V.  Williams, 
V.  Williamson, 


124,  289,  290,  560 
279 


19,  434 

297 

363 

7 

45 

74 

174,  451 

318 

316 

252,  576,  577 

276 


V.  Wilson,  274,  315,  728,  741,  750 


Wish, 
V.  Woodside, 
V.  Woodson, 
V.  Wright, 
V.  Wyl, 
V.  Yard, 
V.  Yearby, 
V.  Youmans, 
B'k  V.  Brown, 


694 
281 
742 
698 
129 
734 
130 
259,  343,  379 
228 


B'd  of  Ass'rs  V.  R.  R.  Co.,      588 
Line,  &c.,  R.  R.  Co.'s  App.,  743, 
744,  745 
Tax  on  For.  Held  Bonds,       235 


V.  Townsh.  Committee, 


299 


Treas.  v.  Weeks, 

227 

Stead  V.  Carey, 

42, 

381 

Steamb.  Co.  v.  Collector, 

266 

Steamsh.  Co.  v.  Jolitie, 

681, 

694 

Siebbins  v.  Anthony, 

547 

V.  Pueblo  Co., 

148 

Stechert  v.  East  Saginaw, 

756 

Steed  V.  McRae, 

179 

Steel  V.  Henley, 

649 

V.  State, 

451 

Steele  v.  Bates, 

516 

V.  Brannan, 

187 

V.  Midland  R.  Co., 

42 

Steen  v.  Finley, 

373 

Stein  V.  Indianp.,  »&c.,  Ass'n, 

191 

Steiner  v.  Coxe, 

501 

Steines  v.  Franklin  Co., 

428 

Steinman,  ^xp., 

713 

StemsoG  V.  Heath, 

663 

Stephen  v.  Muir, 

191 

Stephens  v.  Robinson, 

649 

V.  Sharp, 

189 

Co.  V.  R.  R.  Co., 

708 

Stephenson  v.  Doe,            106 

684 

706 

Sterling's  App., 

730 

Stettin,  The, 

535 

Steuart  v.  Meyer, 

549 

Stevens  v.  Evans, 

663 

V.  Gourley, 

607 

,641 

V.  Jeacocic, 

340 

,  669 

V.  Ross, 

204 

V.  Watson, 

315 

Stevenson  v.  Morris, 

loa 

V.  Oliver, 

681 

TABLE   OF   CASES. 


Steward  v.  Greaves, 

276 

Stewart  v.  Bramliall, 

191 

V.  Com'th, 

736 

V.  Crosby, 

722 

V.  Foster, 

245 

V.  Freeman, 

99 

V.  Jones, 

310 

V.  Keemle, 

325, 

326 

V.  Lawton, 

500 

V.  Palmer, 

604 

V.  Slater, 

619 

V.  State, 

363 

V.  Stringer, 

174 

349 

Stiel  V.  Sunderland, 

474 

Stier  V.  Oskaloosa, 

706 

Stiles  V.  Murphy, 

392 

Stilz  V.  Indianapolis, 

364 

Stingel  V.  Nevel, 

520 

Stinsou  V.  Pond, 

557 

V.  R.  R.  Co., 

168 

Stirman  v.  State,               271, 

281 

6S0 

Stoats  V.  R.  R.  Co., 

295 

Stocker  v.  Warner, 

375 

Stockett  V.  Bird, 

45,48 

Stockt.  &  D.  R.  Co.  V.  Barrett, 

478, 

494 

Stockton  V.  Coleman, 

191 

Stockwell  V.  Brewer, 

125 

V.  McHenry, 

363 

373 

V.  U.  S., 

314 

Stoever's  A[)p., 

546 

Stoever  v.  Immell, 

683 

Stokes'  Trusts, 

493 

Stokes  V.  Grissell, 

553 

Stone  V.  Dean, 

628 

V.  Eisman, 

616 

V.  New  York, 

127 

137 

V.  Stone, 

202 

574 

V.  Yeovil, 

409 

Stoneman  v.  R.  R.  Co., 

245 

Stoops  V.  Blackford, 

615 

V.  Post, 

25 

Storey,  Exp., 

218 

V.    Brennan, 

189 

Storie  v.  Winchester, 

361 

Stormfeltz  v.  Turnp.  Co.,  224 

225 

,495 

Story  V.  Solomon, 

194 

Stoughton  V.  Baker, 

223 

227 

Stow  V.  Wyse, 

606 

Stowell  V.  Fouch, 

78 

Stracey  v.  Nelson, 

586 

Stradling  v.  Morgan, 

36 

115 

Stratf.  Sch.  Distr.  v.  Ufford, 

143 

Straus  V.  Cotn'th, 

228 

Strauss  V.  Heiss, 

260 

Stre.it  V.  Rothschild, 

218 

Street  v.  Com'th, 

282 

292 

V.  Comm'rs, 

283 

Streeter  v.  People, 

518 

Streuhel  v.  R.  R.  Co., 

686 

Stribbling  v.  B'k, 

116 

Strother  v.  Hutchinson,  442 

Strode  v.  Stafford  Justices,  44 

Strong  V.  Wheaton,  99 

Stryker  v.  Cassidy,  131 

Stuart  V.  Laird,  220,  502,  503,  743 

V.  Leigh,  505 

V.  Palmer,  713 

Studabaker  v.  Marquardt,  191 

Stump  V.  Hornback,  712,  757 

Sturgeon  v.  State,  615 

Sturges  V.  Crowninshield,  99,718 

Sturgis  V.  Darrell,  447,  514 

Sturgiss  V.  Hull,  363,  382 

Sturla  V.  Freccia,  524 

Slurtevant  v.  Norris,  370 

Suche  &  Co.,  Re,  372 

Sudburv  Meadows  v.  Middlesex 

Canal,  216 

Suffolk  B'k  V.  Worcester  B'k,  457 

Sugar  V.  Sackett,  496 

Sullivan's  App.,  569 

Sullivan  v.  Adams,  263 

V.  Barry,  202 

V.  La  Crosse,  &c.,  Co.,      173, 

174 

v.  People,  259,  275,  679 

Sully  v.  Atty.-Gen.,  242 

Summer  v.  Childs,  448 

Simderland  v.  Sussex,  369 

Supervis's  v.  Heenan,  756 

v.  U.  S.,   424,  427,  429,  431 

Siirtees  v.  Ellison,  681 

Sussex  Peerage,  The,    6,  234,  236,  471 

Sutphin  v.  Crozer,  189 

Sutton's  Case,  102 

Sutton  V.  Clarke,  598 

v.  Fletcher,  163 

V.  Sutton,  76,  86 

Swan  V.  Blair,  650 

Swann  v.  Buck,  269,  526,  703,  755 

V.  Lindsey,  227 

Swanson  v.  Swanson,  106 

Swartwout  v.  Air  Line  Co.,  262 

Swartz's  App.,  562 

Swayne  v.  Lyon,  361 

Swearinger,  He,  164,  517,  518 

V.  U.  S.,  227 

Swepton  V.  Barton,  624 

Swift's  App.,  333,  3;S6 

Swift  V.  Adkins,  191 

V.  Jewsbury,  141 

V.  Luce,  25 

V.  Newport,  238 

V.  Swift,  236 

V.  Tyson,  167 

Swigert,  Be,  568 

Swing  V.  Woodruff,  597 

Swinney  v.  R.  R.  Co.,  259 

-Swords  V.  Owen,  647 

Syracuse  City  B'k  v.  Davis,  394 

Syred  v.  Carruthers,  629 


TABLE   OF   CASES. 


1X1 


T. 


Tafoya  v.  Garcia,  272,  537 

Taggart  v.  Commonwealth,  749 

Talbot  V.  Shrewsbury,  291 

V.  Simpson,  446 

Tallaraon  v.  Cardenas,  679 

Tallman  v.  Jones,  178 

Tarrant  v.  Baker,  403 

Tassell  V.  Ovenden,  337 

Tate  V.  Stool tzfoos,  384 

V.  Wellings,  193 

Tattle  V.  Grimwood,  678 

Tatum  V.  Tamaroa,  313 

Tayloe  v.  Tliomson,  2 

Taylor,  Re,  148,  204 

V.  Caldwell,  627 

V.  Crowland  Gas  Co.,  123,  649 

V.  Goodwin,  464 

V.  Greene,  168 

V.  Humphreys,  125 

V.  Kelly,  104 

V.  Mitchell,  362,  363,  368 

V.  Newman,  74,  162 

V.  Oldham,  70,  288 

V.  Oram,  561 

V.  Palmer,  44,  45 

V.  Parry,  524 

V.  Phillips,  636 

V.  Porter,  604,  713 

V.  Rushing,  685 

V.  State,  681,  701 

V.  St.  Mary  Abbott,  122 

V.  Taylor,      42,  489,  558,  559, 

623,  718,  719,  720,  738 

V.  Thompson,  517 

V.  U.  S.,  459,  480 

V.  Welbey,  541 

Tawny's  Case,  346 

Teague's  Case,  539 

Teather,  Ejcp.,  604 

Tempest  v.  Kilner,  562 

Temple  v.  Hays,  701 

Templeton  v.  Home,  685 

Tennant  v.  Bell,  543 

V.  Rawlings,  630 

Tenney  v.  Foote,  192 

Ternan,  Re,  128 

Terrell,  Re,  203 

Terrill  v.  Auchaner,  634 

Territory  v.  Young,  126 

Terry  v.  B'k,  707 

V.  Milwaukee,  706 

Teter  v.  Clayton,  678 

Tetlow,  Re,  231 

Tewkesbury  v.  Twyning,  198 

Thames  Haven  Co.  v.  Rose,  190 

&c.,  Ins.  Co.  V.  Hamilton,  570 

Thayer  v.  Dudley,  62 

Theberge  v.  Landry,  230 

Theriat  v.  Hart,  531 


Third  Nat.  B'k  v.  Seneca  Falls,      708 

Thirty-Fourth  Str.  R.  R.  Co.,  Re,   751 

Thistle  V.  Coal  Co.,  174,  177 

Thistleton  v.  Frewer,  380 

Thodav,  Exp.,  329 

Thorn  V.  Doub,  191 

Thomas  v.  Adams,  220 

V.  Afflick,  547 

V.  Brady,  655 

V.  Brown,  483 

V.  Collins,  261 

V.  Desanges,  544 

V.  Mahan,  70 

V.  Owens,  751 

V.  Shoemaker,  631 

V.  Stephenson,  465 

V.  Taylor,  623,  755 

Thomasson  v.  State,  23 

B'k  V.  Stimpson,  192 

Thompson's  Appeal,  418 

Thompson  v.  Bulson,  44 

V.  Carroll,  427 

V.  Ewing,  200 

V.  Farrer,  46 

V,  Gibson,  328 

V.  Harvey,  626 

V.  Hill,  601 

V.  Lovrein,  615 

V.  Milwaukee,  713 

V.  Smith,  486 

V.  State,  400 

Thomson  v.  Adv.-Gen.,  242 

Thorburn  v.  Barnes,  603 

Thorne  v.  Moslier,  549 

Thornton  v.  Boyd,  543 

Thorpe  v.  Adams,  298 

v.  Browne,  123 

V.  Schooling,  259,  271 

Thurston  v.  Fisher,  106 

V.  Prentiss,  216 

v.  State,  332,  406 

Thynne  v.  St.  Maur,  169 

Tidey  v.  Mollett,  530 

Tiemeyer  v.  Turnquist,  178 

Tierney  v.  Dodge,  259 

Tilford  v.  Ramsey,  523 

Tiiton  V.  Swift,  382 

Tims  V.  State,  263 

Times  Pub.  Co.  v.  Ladomus,  691 

Timlow  V.  R.  R.  Co.,  707 

Tinker  v.  Van  Dvke,  362 

Tioga  Co.  V.  South  Creek  Tp.,         177 

Tipper  V.  Nichols,  598 

T.isdell  V.  Coombe,  569 

Titcomb  V.  Ins.  Co.,  288 

Titusville's  Appeal,  457,  479 

Tivnan,  Re,  128 

Tobacco  Pipe  Makers  v.  Woodroffe,  56 

Tobin  V.  Hartshorn,  379 

V.  R.,  186 

Todd  V.  Clapp,  395 


Ivii 


TABLE  OF  CASES. 


108 

632,  633 

478 

544,  700 

543 

33,  36,  400 

446 

67 

489 

491 

23,45 

363 

29,74 

619 

330 

690 

274 

162,  658 

383 


Tolland  V.  Willington, 
Tombs  V.  R.  R  Co., 
Toinkins  v.  Ashby, 
Toiiilinson  v.  Bullock, 
Toms  V.  Wilson, 
T>.nnele  v.  Hall, 
Tooke  V.  Newman, 
Toomer,  In  re, 

V.  London, 
Torquay  v.  Bridle, 
Torrance  v.  McDougald, 
Torrey  v.  Corliss, 
Torreyson  v.  Exam'rs, 
Torrv'v.  Mil  bury, 
Tottenbatn  B'd  v.  Rowell, 
Toulill  V.  Douglas, 
Towle  V.  Marrelt, 

V.  Smith, 
Towler  V.  Chalterton, 
Towusend  v.  Brown, 
V.  Deacon, 
V.  Little, 

Sav.  B'k  V.  Epping, 
Trabant  v.  Rummell, 
Trask  v.  Green, 
Tteas'r  of  Vt.  v.  Clark, 
Treat  V.  Strickland, 
Tredwen  v.  Hoi  man, 
Triebel  v.  Deysher, 
Trimmer  v.  Heagy, 
Triplett  V.  Graham, 
Trist  V.  Cabenas, 
Tritt  V.  Crotzer, 
Troulman  v.  May, 
True  V.  Triplett, 
Truehart  v.  Babcock, 
Trueman  v.  Lambert, 
Tuberville  v.  Stamp, 
Tucker  v.  The  Sacramento, 
TurnbuU  v.  Farnsworth, 

V.  Foiman, 
Turner,  Eip., 
Be, 

V.  Browne, 

V.  Evans, 

V.  Morgan, 

V.  O'Bannon, 

V.  Reynell, 

V.  Sta'te, 

Turney  v.  Wilton, 

Tump.  Co.  V.  Brown, 

V.  Com'th, 

Turtle  V.  Hartwell, 

Tuscaloosa  Bridge  Co.  V.  Jemison,  143 

Tuton  V.  State,  681,  682 

Tutile  V.  Griffin,  508,  629 

V.  State,  198 

Tuxbury's  App.,  513,  515 

Twenty-eight  Cases,  480 

Twenty-eighth  Sir.,  Re,  211,  215 

Twitchell  V.  The  Missouri,  235 


Two  Ellens,  The,  588- 

Two  Hundred  Chests  of  Tea,          112 

Twycross  v.  Grant,  135,  191,  439 

Tverman  v.  Smith,  635 

Tyler  v.Tvler,  517 

Tyman  v.  Walker,  7,  23,  93 

Tvson  V.  Postlethwaite,  277 

V.  Thomas,  648,  697 


255 
402 
288 
138 
517 
520 
256 
691 
211 
207 
615 
169 
392 
197,  658 
227 
192 
228 


186 
349 
642 
373 
287 
179 
638 
37 
410 
220 
641 
320,  407,  467 
397,  695 
216 
387 
135 


U.S. 


u. 

Adams, 
Amedy, 
Athens  Armory, 


Babbit, 

Bags  of  Coffee, 

Ballard, 

Bank, 

Barr, 

Barrels  of  Spirits, 

Bassett, 

Beaty, 

Bevans, 

Block, 

Bowen, 

Briggs, 

Buzzo, 

Cases  Cloth, 

Cashiel, 

Cheeseman, 

Cisars 


185 
116 

109,  466, 

475,  480 

258,  583 

542 

150 

505 

259,  271,  688 

480 

35,44 

183 

234 

222 

65 

75 

481 

480,  678 

345,  543,713 

271,  273,  558 

523 


Claflin,  314,  320,  321,  520,  525 

Clayton,  101,  45L 

Clement,  113 

Collier,  54,  60 

Conner,  186 

Coombs,  23,  543,  568 

Cotlingham,  244 

Davis,  175,  227 

Dickson,  257,  505 

Diekelman,  233 

Dist.  Spirits,  451 


Eighty-four  Boxes  Sugar,  453 
Erie  Ry.,  235 

Fehrenback,  89 

Finlay,  681,  682 

Fisher,     74,  75,  151,  152,  240 
Forty-three     Gallons    of 


Whiskey, 
Fox, 

Freeman, 
Furlong, 
Gadsby, 
Gilmore, 
Gooding, 
Graham, 
Greene, 
Hall, 
Harries, 


243 

119.  232 

60,  438 

50 

586 

505,  506,  510 

453 

505 

223 

451 

703 


TABLE   OF   CASES. 


Ixiii 


U.  S.  V.  Hartwell, 

453,  466 

V.  Henderson's 

Tobacco, 

281 

V.  Herron, 

224 

V.  Heth, 

362 

V.  Hewes, 

223 

V.  Hoar, 

223,  227 

V.  Hodson, 

480 

V.  Holmes, 

233,  234 

V.  Howard, 

241 

V.  Irwin, 

259 

V.  Isliaui, 

77 

V.  Jolins, 

109 

V.  Johnston, 

505 

V.  Jones, 

6,98 

V.  Kessler, 

241 

V.  Kirby, 

179,  344 

V.  Klintock, 

241 

V.  Kiiiglit, 

230,  232 

V.  Kolinstamm 

, 

689 

V.  Leathers, 

185 

V.  Lytle, 

505 

V.  McKim, 

162,  188 

V.  Macdaniel, 

505 

V.  Martin, 

654 

V.  Magill, 

5,6 

V.  Moore, 

505 

V.  Morris, 

453,  469 

V.  Morrison, 

509 

V.  Morse, 

144 

V.  New  Bedf.  Bridge, 

593 

V.  Oiney, 

480 

V.  One  Hundred  Barrels 

,  280, 322 

V.  Palmer, 

74, 

241,  54U 

V.  Porte, 

708 

V.  Paul, 

115 

V.  Ragsdale, 

7,  443, 

454,  455 

V.  Recorder, 

504 

V.  Rogers, 

125 

V.  Rossvalley, 

410 

V.  R.  R  Cars, 

77,  162 

V.  Ry.  Co., 

227 

V.  Sanders, 

115 

V.  Sarchet, 

113 

V.  Sheldon, 

451,  574 

V.  Simms, 

686 

V.  Sixty -seven 

Packages 

, 280,  322 

V.  Siarr, 

362,  451 

V.  Stern, 

410, 

453,  467 

V.  Taylor, 

183 

V.  Ten  Cases  Shawls, 

415 

V.  The  Helen, 

681 

V.  Thirty-six  Barrels  of  Wine, 

480 

V.  Thomasson, 

180 

V.  Thompson, 

227 

V.  Tluee  Tons  of  Goal, 

480 

V.  Tynen, 

271, 

320,  681 

V.  Twentv-five 

Cases, 

280 

V.  Un.  Pac.  R. 

R.  Co., 

38,41 

V.  Vickery, 

22 

V.  Villalonga, 

127,  137 

U.  S.  V.  Voss,  186 

V.  Walker,  280 

V.  Warner,  7,  29 

V.  W^itts,  481 

V.  Wiiite,  227 

V.  Webster,  80 

V.  Weise,  561 

V.  Wigglesworth,  479 

V.  Willetts,  480 

V.  Williams,  227,  701 

V.  Wilson,  453 

V.  Wiltberger,     6,  234,  452,  453, 

454,  455 

V.Winn,  119 

V.  Wood,  322 

B'k  V.  McKenzie,  228 

V.  Stearns,  707 

Tel.  Co.  V.  West.  Un.  Tel.  Co  ,  1 16 

Udney  v.  East  India  Co.,  242 

Underhill  v.  Ellicombe,  663 

V.  Longridge,  434,  465 

Underwood  v.  Lilly,  384,  394 

Unger  v.  Boas,  192,  358,  642 

Ungley  v.  Ungley,  445 

United  Hebr.  Ben.  Ass'n  v.  Ben- 

shimol,  694 

Land  Co.  v.  G.  E.  R.  Co.,    492 

Soc'y  v.  Eagle  B'k,  68,  70 

Union  B'k  v.  Laid,  608 

V.  Lenanton,  158 

Canal  Co.  v.  Dauphin  Co.,  117 

V.  O'Brien,  54 

V.  Young,  159 

Ins.  Co.  V.  Hoge,  505 

V.  U.  S.,  413 

Iron  Co.  V.  Pierce,        259,  683 

Locks  &  Canals  v.  Towne,   659 

Stearash.  Co.  v.  Melbourne 

Harbour  Trust.     90,  91,  116 

Pac.  R.  R.  Co.  V.  U.  S.,  495,  709 

Unity  V.  Burrage,  706,  708 

Utica  Ins.  Co.  v.  Scott,  446 

Uwchlan  Tp.  Road,         683,  686,  687 


V. 


Va.  &  Md.  St.  Nav.  Co.  v.  U.  S.,     552 

Valentine  v.  Fish,  191 

Vallana  v.  Falle,  216 

Vallejo  v.  Wheeler,  187 

Vanatta  v.  Anderson,  593 

Vance  v.  Grey,  412 

Vanderpoel  v.  O'Hanlon,  730 

Vandeventer  v.  R.  R.  Co.,  234 

Vandike  v.  Rosskam,  486 

Vane  v.  Vane,  159 

Van  Fleet  v.  Van  Fleet,  370 

Van  Hook  v.  Whitlock,  667 
Van  Inwagen  v.  Chicago,         379,  684 

Vankirk  v.  Skillman,  178. 


Ixiv 


TABLE   OF   CASES. 


362,  393 
705 
679 
548 
754 
597 
253 
685 
417 
557 


Van  Loon  V.  Lyon,  503,508 

Van  Noorden  v.  Prm,  ,  ^^^ 

Van  Rensselaer  v.  L'vmgston  364 

Van  Riper  r.  Essex  R.  R.  B  d,         'J^ 

Van  Sandan,  Exp.,    . 

Van  Sliaack  v.  Robbins,  361,  3bi 

Van  Sicklen  v.  Burlington,  o^^ 

Vansittart  v.  Taylor,^ 

Van  Swartow  v.  Com  th, 

Vanvalkenbiirgh  v.  Torrey, 

Varin  v.  Edmonson, 

Varney  v.  Justice, 

Vaugban  v.  Taff  \  ale  R.  Co. 

Vavasour  v.  Ormrod, 

Veats  V.  Danbury, 

Veazie  v.  China, 

Venango  Nat.  B'k  v.  Taylor 

Venour,  i»re,  ^6' ^*^' o.^i 

Verdinv.  Wray,  ^g 

Vermont,  The,  ^45 

Vernon,  The,  g^j^ 

Verona's  App.,  ,.-, 

Victory  v.  Eitzpatrick,  ^^^ 

Vigo's  Case,  ^ 

Vincent,  £:xp.,  ^.q 

Vining  v.  Bricker,  °^ 

Vinnedge  V.  ShafJer,  |^^ 

Vinton  V.  Builders',  &c.,  Ass'n,  45, 106 

Violett  V.  Sympson, 

Virginia,  &c.,  R.  R-  Co.  v.  Lyon 

Co., 
Vischer  v.  Yates, 
Voorhees  v.  B'k  of  U.  b., 
Von  Schmidt  v.  Huntingdon, 
Vreeland  v.  Bramhall, 


543 
86,  556 
282 
213 
356,  477 
192 
238,  682 
242 
264,  550 
523 
439 
227 
201 
227,  228 
703 
122,  128,  706 
547 
139 
392 
281 
635 
33,  447 
22 


93 
189 
254 
363 
363 


w. 

Waddington  v.  Lond.  Union, 
"Wade  V.  y track, 
Wadham  v.  P.  M-  Gen., 
"Wad more  v.  Dear, 
Wainright,  Re,  ^^^ 

"Waite  V.  Bingley, 

V.  Jones, 
"Wakefield  v.  Phelps, 
V.  Smart, 
V.  State, 
Waldo  V.  Bell. 
"Waldron  v.  Ritchings, 
Wales  V.  Stetson, 
Walker,  iJe, 

V.  Cincinnati, 
V.  Chapman, 
V.  Chicago, 
V.  Clements, 
V.  Geisse, 
V.  Goe, 
V.  Hall, 
Y.  Horner, 


346 
363 
660 
598 
432,  465 
2411 
656  I 
54,  271 
106 
213 
294 
235 
336 
705 
747 
619 
143 
104 

5y2 

674 
246 
468 


Walker   v.  O-^wald, 

V.  Richardson, 
V.  State, 
V.  Wynne, 
Wall  V.  Duvey, 

V.  Schneider, 
V.  State, 
Wallace  v.  Atty-Gen., 
V.  Blackwell, 
!  V.  Holmes, 

'  V.  King, 

I  V.  Miner, 

I  Wallgrave  v.  Tebbs, 
1  Walls  V.  McGee, 
1  Wain  V.  Phiiad'a, 
1  Walnut  V.  Wade, 
Walsh  V.  Boyle, 
'  V.  Southworth, 

Walston  V.  Commonwealth 
Walter's  App., 
AValter  v.  Bechtol, 
Walton,  Exp., 

V.  Perkins, 
V.  State, 
Wandsworth    B'd   of    Works    v 

United  Teleph.  Co., 
Wanklvn  v.  WooUett, 
Wanger's  App., 
Wanstead  B'd  v.  Hill, 
"Warburton  v.  Loveland, 
Ward  V.  r.eck, 
V.  Gray, 
V.  Hallam, 
V.  Hobbs, 
V.  Robins, 
V.  Scott, 
1  V.  Walters, 

V.  Ward, 
Warden  v.  Dean, 

V.  Tye, 
Ware  v.  Green, 
Warfield,  iJe, 

V.  Fox, 
Warkworth,  The, 
Warne  v.  Beresford, 

V.  Varley, 
Warnecke  v.  Lenibea, 
Warner  v.  Armstrong, 

V.  Commonwealth, 
V.  Fowler, 
V.  Murdoch, 
Warnock  v.  Davis, 
Warren  v.  Doolittle, 

Man'g  Co.  V.  Ins.  Co., 
V.  Shuman, 
Warrington,  Eyp., 

V.  Furbor, 
Warshung  v.  Hunt, 
Wartman  v.  Phila., 
Warwick  v.  White, 
"Washburn  v.  Franklin, 


453 

490 
24 
133 
571 
4 
512 
96 
106 
671 
15 
157 
548 
31 
561 
345 
227,  228 
503,  508 
23,  446 
175 
374,  388,  684 
403 
10/ 
193,  646 
451 
174,  177 
387 
194 
339 
362 
726 
292 
479 
363 
700,  701 
218 
691 


TABLE   OF   CASES. 


Ixv 


Washburn  v.  Mclnroy, 
Washer  v.  Elliot, 

^-^^"^*°"Icr&v.  State, 
Water  Comm'rsv.Conkhng, 

Works  Co.  V.  Burkhart, 

Waterford  Peerage, 

R.  R.  Co.  V.  Logan, 

Waterhouse  v.  Keen, 
Waterman  v.  Buckland, 
Waters  v.  Cam{ibell, 
Waterton  v.  Baker, 
Watkins  v.  Major 

V.  Wassell, 
Watrous  v.  Blair, 
Watson  V.  Bailey, 

V.  Blaylock, 
V.  Kent, 
V.  Martin, 

V.  Mercer,  ' 

Watlon  V.  Watton, 
Watts  V.  Ainsworth, 
Waugh  V.  Middleton, 
Way°v.  Way, 
Wayman  v.  Southard, 
Wayniell  v.  Read, 
Wayne  Co.'s  App.,  . 
Co.  V.  Detroit, 


Wead  V.  Cantwell, 

Wear  Nav.  Com.  v.Adamson,^36, 152^ 

Weatherhead  v.  Bledsoe, 
Weaver  v.  Lutz, 
Weavers'  Co.  v.  Strange, 
Webb  -Re, 

V.  Baird, 
V.  Bird, 
V.  Fairmanner, 
V.  Knight, 

V.  Manchester  R.  OO., 
Webber,  Exp., 

V.  Quaw, 
Weber  v.  Weber, 
Webster  v.  French, 

V.  Webster, 
Weed  v.  Snow, 
Weeks  v.  Hull, 
V.  Weeks, 
V.  Wray, 
Weidenhamer  v.  Bertie, 
Weidner  v.  Matthews, 

Weil  v.  Calhoun,  ^-,, 

WeiUv.Kenfield,     714  715,738,  /5b 

Weinman  v.  Pass.  Ry.  ^o.,  ^^. 

Weisbrod  v.  Daenicke, 

Weiss  V.  Mauch  Chunk  Iron  Co..  27^1, 

Weisterv.Hade,  107, 167.382,741,754 

Welch  V.  Kline, 


Welch  v.  Nash. 
Weldon  v.  Neal, 

V.  Riviere. 
V.  Winslow, 
Wells  V.  Iggulden, 

V.  L.  &  T.  R.  Co.. 
V.  Porter, 
V.  R.  R.  Co., 
Welman,  R'', 
^i^  I  Wendel  v.  Dnrbin, 
;i94    Wentworth's  App., 
434  1  Wentz  v.  State, 
Wescomb's  Case, 
Wesley  Church  v.  Moore. 
West  V.  Blake, 
V.  Com' ill, 
V.  Francis, 
V.  Pickeismer, 
V.  Pine, 

V.  Simmons,  -     ■ 

West  Br.  Boom  Co.  v.  Dodge 

Chic.  Park  Comm'rsv.Bren- 

ock,  , 

Ham.  Overseers  v.  ^^^^ 
Harrisb,,  &c,  Ass'n  v.  Mor- 
ganthal, 
West.  Pa.  R.  R  Co.'s  App. 
Un  Tel.  Co.  v.  Axtel  , 

V.   District   of 

Columbia, 
V.  Kinney,  462 
V.  Pendleton, 


140,  199, 


350 
279 
390 
390 
258 
472 
463 
333 
701 
617 
130 
181 
122 
212 
705 
13 
529 
106 
259 
405 
496 


Westbrook  v.  Blythe, 
V.  Miller, 
Westbury  v.  Coston, 
Westcott  V.  Miller, 
Westfall  V.  Mapes, 
Westminster  v.  Gerrard, 
Westmoreland,  Tbe, 
Weston  V.  Arnold, 
Westover  v.  Perkins, 


V,  Reed,  462 
V.  Steele,  320, 
462, 


226, 

80, 


693, 


I^S^rpla- Winter,  ^,  10M06, 
TOO    Wevmouth  v.  Nugent, 
546    Whalen  v.  Gabel, 

634  Wharton  Peerage, 

635  Wheaton  v.  Peters, 
623  I  Wliedon  v.  Cliamplm, 

Wheeler  v.  Bates, 

V.  Carpenter, 
V.  Chicago, 
V.  McCormick, 
V.  Russell, 

754  I  ^-  W^"°' 

330  I  Wheeling  v.  Campbell, 

5 


259 

80 

405 
154 
455 


6 
,671 
462, 
671 
,671 
451, 
671 
303 
505 
198 
517 
484 
467 
153 
237 
523 
12S 
651 
42 
143 
523 
169 
524 
614 
330 
222 
172 
,620 
166 
644 
143 
229 


156, 


432 


Ixvi 


TABLE   OF  CASES. 


Whelen's  A  pp.,  196 

Wliulborne  v.  Eccles.  Com.,  157 

Wliipley  V.  Mills,  616 

Wlii-sller  V.  Forster,  337 

Whilaker  v.  Haynes,  302 

V.  Pope,  685 

V.  iSmilh,  131 

Whitchurch  v,  Fiilham  B'd,  206 

Wliiuoinb  V.  Kood,  65,513,516 

White.  Exp.,  369 

V.  Blum,  363,  364 

V.  Boot,  697 

V.  Coquetdale,  15 

V.  Crawford,  363 

V.  Germ.  Ins.  Co.,  547 

V.  Hilton,  374 

V.Howard,  119 

V.  Haworth,  550 

V.  Ivey,  475,  574 

V.  Johnson,  292 

V.  McKeesport,  216,  612 

V.  Sieel,  157 

V.  The  Mary  Ann,  142 

V.  White,  691 

V.  Wright,  193 

Co.  V.  Key,  142,  143 

Whitechurch  v.  East  London  Co.,  28,  29 

AVhitehead  v.  Wells,  272 

Whitehorne  v.  Thomas,  122 

Whiiehouse  v.  Fellowes,  550,  597 

Whrteley  V.  Chappell,  461 

Whitlield  V.  Langdale,  37 

Whiilurd  V.  R.  R.  Co.,  244 

Whitney  v.  Eminett,  451,  624 

V.  Hiipijood,  363 

V.  Whitney,  115,  442 

Whiltinghatn's  Trust,  169 

Whitwell  V.  Carter,  189 

Wic:kham  V.  Page,  349 

Wieinan  v.  Anderson,  592 

Wiener  v.  Davis,  170,  474 

Wigan  V.  Fowler,  86 

Wilber  v.  Paine,  142 

Wilberforce  v.  Hearfield,  158 

Wilbrahara  v.  Ludlow,  730 

Wilbur  V.  Crane,  155,  173,  174 

Wil(!()x  V.  State,  282 

Wilder  V.  Haughey,  126 

Wilderinan  v.  Rodgers,  592 

Wiley  V.  Crawford,  536,  644 

Wilkes  v.  Hungerford  Market  Co.,  674 

Wilkes-Barre's  App.,       '  739 

Wilkie  V.  Jones,  476 

Wilkins  v.  Despard,  542 

Wilkinson  v.  Evans,  483 

V.  Ketler,  265 

V.  Leland,  44,  401 

Willard  V.  Pike,  620 

Wiliets  V.  Ridgway,  621,  755 

Willelt  V.  Boote,  185 

Willey  V.  Strickland,  213 


Williams,  Ezp.,  102,  326,  701 

V.  Cary,  439 

V.  Cheeney,  648 

V.  Ellis,  69,  563 

V.  Evans,     23,  445,  465,  470 

V.  G.  W.  R.  Co.,  492 

V.  Goliling,  569 

V.  Harding,  372,  385 

V.  Jones,  121 

V.  Lake,  483 

V.  Lear,  512 

V.  Lords  of  Adm'v,  588 

V.  McDonal,  "     147,  288 

V.  Mason,  141 

V.  People.  29,  44,  420 

V.  Poller,  292 

V.  Pritchard,  299 

V.  R<jberts,  350 

V.  Smith    '  372 

V.  Tiedeman,  192,  194 

V.  Tilt.  191 

Williamson  v.  Bailey,  645 

V.  Lane,  712 

V.  Maggs,  26 

V.  Mitchell,  532 

V.  R.  R.  Co.,  363 

Williamsport  v.  Brown,  282 

V.  Com'th,  590,  597 

Willing  V.  Bozman,  308,  31 1 

Willion  V.  Berkley,  223,  230 

Willis  V.  Fincher,  391 

V.  Gipps,  84 

V.  R  R.  Co.,  486 

V.  Thorp,  570 

Willock  V.  Noble,  155 

Wills  V.  Auch,  475 

V.  Russell,  537 

Willy  V.  Mulledy,  667 

Wilmington,  &c.,  R.  R.  Co.  v.  Reid, 

69,  494 

Wilmot  V.  Rose,  74.  82 

Wilson,  Re,  330 

V.  Briscoe,  45 
V.  Halifax,  138,  186,  403,  561 

V.  Hamilton,  207 

V.  Herbert,  178,  692 

V.  Hudson,  227 

V.  Knubley,  85,  444 

V.  Marryat,  119 

V.  Nightingale,  45 

V.  Palmer,  616 
V.  R.  W.  Sch.  Distr.,         371^ 

V.  Rankin,  64(7 

V.  Rastall,  206 

V.  Shorrick,  294 

V.  Spaulding,  74 

V.  Siaie  B'k,  619 

V.  W.  Hartlepool  Co.,        445 

V.  Wall,  243 

V.  Wilson,  432 

Wiltse  V.  State,  747 


TABLE   OF   CASES. 


Lxvii 


Winch  V.  Cons's  of  the  Thames,      599 
AVindley  v.  Brad  way,  542 

Winn  V.  Mossman,  87 

Winoosky  v.  Gokey,  706 

Winslow  V.  Kimball,  35 

V.  People,  390 

Winter  v.  Dickerson,  680 

V.  Jones,  352 

Wiiiterbottom  v.  Wright,  350 

Wintertield  v.  Strauss,  533 

Wiseman  v.  Cotton,  565 

Wistar  v.  Kainmerer,  488 

Withers  v.  Baird,  154 

Wilherspoon  v.  Dunlap,  591 

Witliipole's  Case,  529 

Witkouski  V.  Witkouski,  679 

Wolcott  V.  Pond,  107, 142,  329 

Wolf  V.  Lnwry,  508 

Wolfe  V.  Henderson,  448 

Wolley  V.  Kay,  470 

Wolverlianipton  Water  W'ks  Co. 

V.  Hawkesford,  624 

Wolverton  v.  Commonwealth,         532 

Womelsdorf  V.  Heifner,  487 

Wood,  Be,  530 

V.  Chapin,  619 

V.  Commonwealth,  548 

V.  Duncan,  189 

V.  Elect'n  Com'rs,        305,  306 

V.  Fort,  701 

V.  Heaih,  329 

V.  Morehouse,  545 

V.  Mowing,  &c.,  Co.,  44 

V.  Priestner,  37 

V.  Rilev,  684 

V.  Rowcliffe,  160 

V.  U.  S.,  275,  281 

V.  Wall,  616 

V.  Westborough,  389 

V.  Wood,  20,  98 

Woodbury  v.  Berry,  9,  22,  537 

V.  Freeland,  441 

Woodgate  v.  Godfrey,  195 

Wood  house  v.  Woods,      616,  628,  629 

Woodland  v.  Fuller,  544 

Woods  V.  Maine,  35 

Woodward  v.  L.  &  N.  W.  R.  Co.,  563 

V.  Watts,  17,  353 

Woodworth  v.  Payne's  Adm'rs,      579, 

580 

V.  State,        574,  576,  577 

Woolsey,  Be,  713,  756,  757 

V.  Brown,  559 

V.  Cade,  515 

Woolworth  Co.  v.  Whitewater,        306 

Worcester  v.  Droitwich,  346 

Work  V.  Hoofnagle,  668 

Workingmen's  B'k  v.  Converse,      704 

B.  A.  V.  Coleman,   615 

Worms  V.  De  Valdor,  234 

Worrell  v.  Slate,  40S 


Worth  V.  Peck, 

407 

Worthen  v.  Ratcliffe, 

683,  686 

Wray  v.  Ellis, 

312 

Wright's  Appeal, 

197 

Wright,  Be, 

106 

V.  Bundy, 

191 

V.  Cradlebaugh, 

604,  713 

V.  Frant, 

415 

V.  Graham, 

384 

V.  Greenroyd, 

380 

V.  Hale,  386,  387,  388 

V.  Hawkins,  706 

V.  Legge,  595 

V.  Lond.  Omn.  Co.,  345 

V.  Mills,  544 

V.  Monarch  Invest.  Soc'y,  161, 

215 

V,  Nutall,  82 

V.  Oakley,  694 

V.  Pearson,  581 

V.  Remington,  245 

V.  Swan,  227 

V.  Wallasey  L.  B'd.,  333 

V.  Williams,  15,  399 

Wrightnp  v.  Greenacre,  297 

Wroughton  v.  Turtle,  478 

Wyatt  V.  Melrop.  B'd,  694 

Wyman  v.  Brigden,  448 

V.  Campbell,  281 

V.  Fabens,  514 

Wyn  V.  Lvn,  251 

Wvnn  Hall  Co.,  Be,  624 

Wynne,  Be,  701 

V.  Middleton,  471 


Y. 

Yarmouth  v.  Simmons,  253,  472 

Yates'  Case,  531 

Yearwood's  Trusts,  Be,  278 

Yeates  v.  Meadville,  356 

Yeaton  v.  U.  S.,  681 

Yerger,  Exp.,  281,  557 

Yerkes  v.  Solomon,  194 

York's  App.,  509 

York  v.  Middlesborough,  83 

Co.  V.  Crafton,  80,  82 

B'k  V.  Carter,  170,  474 

&  N.  Midi.  R.  Co.  V.  R.,  10.  422 

Youghioghenv  Shaft  Co.  v.  Evans,  664 

Youle  V.  Mappin,  185,  320,  321 

Young  V.  B'k,  707 

V.  Edwards,  491 

V.  Gratridge,  574 

V.  Higgon,  546 

V.  Hughes,  362,  381 

V.  Leamington,  626 

V.  Martin,  475 

V.  McKenzie,  174,  496 


TABLE   OF   CASES. 


Zachaiie's  Succ'n,  227 

Zacharie  v.  Godfrey,  698 

Zeckendorf  v.  Zeckendorf,  616 

Zeigler  v.  R.  R.  Co.,  604,  713 

Zimmermaa  v.  Cowan,     543,  544,  550 


Zimmerman  v.  Erhard,  647 

V.  Schoenfeldt,  156 

V.  Turnp.  Co.,  678 

Zollverein,  The,  234,  239,  242 

Zouch  V.  Empsey,  648 

Zurn  V.  Noedel,  178,  592 


Interpretation  of  Statutes. 


CHAPTER  I. 
Literal  Interpretation. 

§    1.  Introductory. 

§    2.  Primary  Rule  of  Literal  Interpretation. 

§    3.  Common  Law  Meaning  of  Words. 

§    4.  Language  admitting  of  only  one  Meaning. 

§    5.  Considerations  of  Policy. 

g    6.  Consequences. 

§    8.  Language.     Intent.     Judicial  Legislation. 

§    9.  Application  of  the  Principle  of  Literal  Interpretation, 

§  17.  Exceptions, 

^  18.  Additions. 

§  23.  Effect  to  be  given  to  every  word,  etc. 

§  24.  Insensible  Enactments. 

§  1.  Introductory.— Statute  law  is  the  will  of  the  Legis- 
lature  ;'  and  the  object  of  all  judicial  interpretation  of  it  is 

>  "  Statute  Law  may,  we  think,  "  after  a  statute  has  been  settled  by 
be  properly  defined  as  the  will  of  judicial  construction,  the  construc- 
the  nation  expressed  by  the  Legis-  tion  becomes,  so  far  as  contract 
lature,  expounded  by  Courts  of  rights  acquired  under  it  are  con- 
justice.  The  Legislature,  as  the  cerned,  as  much  a  part  of  the  stat- 
representative  of  the  nation,  ex-  ute  as  the  text  itself,  and  a  change 
presses  the  national  will  by  means  of  decision  is  to  all  intents  and 
of  statutes.  Tliose  statutes  are  purposes  the  same  in  its  effect  on 
expounded  by  the  Courts  so  as  to  contracts  as  an  amendment  of  the 
form  the  body  of  the  Statute  law  by  means  of  a  legislative 
Law"  (Wilberforce,  Statute  Law,  enactment "  (Douglass  v.  Pike  Co., 
p.   b).      It    has    been   said,   that,  101  U.  S.  677,  687 ;  and  see  much 


LITERAL    INTERPKETATION. 


[§1 


to  determine  what  iutention  is  conveyed,  either  expressly  oi 
by  implication,  by  the  language  used,  so  far  as  it  is  neces- 
sary for  determining  whether  the  particular  case  or  state  oi 


to  the  same  effect  as  to  settled  .and 
uniform  practice  and  usatre  under 
a  statute,  Tayloe  v.  Thomson,  5 
Pet.  358) ;  so  that,  where  a  decision 
of  the  supreme  judicial  tribunal  of 
a  state  announced  a  certain  rule  as 
resulting  from  the  conslruclion  of 
a  statute,  and  a  contract  was  en- 
tered into  upon  the  basis  of  that 
decision,  it  was  held  unaffected  by 
a  subsequent  overruling  of  the 
decision  (Geddes  v.  Brown,  5 
Phila.  fPa.]  180).  But  tlie  object 
of  all  judicial  exposition  of  stat- 
utes is  the  ascertaining  of  the 
meaning  of  the  language  used  by 
the  Legislature.  It  neither  adds 
to,  nor  changes  its  true  signifi- 
cance, but  discovers  and  declares 
the  same.  The  statute,  therefore, 
as  expounded,  is  the  law,  and  the 
aggregate  of  all  statutes  in  force 
and  the  judicial  expositions  tiiereof 
form  the  body  of  the  Statute  Law 
of  the  state  or  natitm.  It  is  in  this 
sense  that  the  law  is  a  solemn  ex- 
pression of  the  will  of  the  supreme 
power  in  the  state  (Cal.  Pol.  Code, 
§  4466).  Where,  however,  the 
supreme  law  of  the  land  is  not  the 
will  of  the  Legislature,  or  the  will 
of  the  people  expressed  by  the 
Legislature,  but  the  Constitution, 
it  is  not  every  statute,  however 
clearly  expounded,  that  is  part  of 
the  law,  but  only  such  as  conflict 
with  no  constitutional  prohibition 
and  conform  to  constitutional  re- 
quirements. Whilst  it  is  no  part 
of  the  purpose  of  this  work  to  enter 
upon  questions  of  constitutional 
law,  it  is  impossible  to  overlook 
this  restriction  in  framing  a  proper 
definition,  of  what  is,  in  this  coun- 
try, statute  law.  "  Statute  law, 
by  American  definitions,  is  an  act 
which  is  prescribed  by  the  legisla- 
ture, or  supreme  power  of  the 
State  "  (Potter's  Dwarris,  on  Slal- 
ules  and  Constitutions,  p.  35).  Irres- 
pectively of  the  ol)vious  criticism 
that  "  statute  law  "  cannot  be  "  an 
act  which  is  prescribed,"  but  must 
be  that  which  prescribes  an  act. 
it  is  submitted  tliat  this  definition 


falls  short  of  accuracy  in  that  it 
overlooks  the  element  of  constitu- 
tional limitations  and  the  identifica- 
tion of  judicial  expositions  with 
the  body  of  the  statute  law.  It 
would  seem  that  an  acceptable 
definition  of  the  latter  would  be 
that  which  describes  statute  law 
as  being  the  will  of  the  people  con- 
forming with  iis  constitution,  ex- 
pressed, in  accordance  with  consti- 
tutional requirements,  by  the  Leg- 
islature, and  expounded  by  Courts 
of  justice.  This,  however,  is  the 
body  of  the  statute  law,  which,  by 
its  terms,  includes  the  judicial  ex- 
positions already  made,  of  the 
individual  statutes.  The  object  of 
this  treatise  is  to  elucidate  the 
principles  upon  which  these  expo- 
sitions that  go  to  form  part  and 
parcel  of  the  statute  law  of  a  state 
or  nation  are  to  proceed,  in  the 
individual  cases  in  which  they  may 
be  called  for.  The  question,  there- 
fore, should  not  be  :  What  is  stat- 
ute law  ? — but.  What  is  a  statute  ? 
A  statute  which  lacks  the  formal 
requisites  needful  in  order  to  give 
it  the  effect  of  a  law,  cannot  fall 
under  the  construction  of  a  court 
of  justice  as  a  law.  It  is  not  a 
statute  within  the  meaning  of  a 
work  upon  the  interpretation  of 
statutes.  But  a  statute  which  is 
unconstitutional  in  its  objects, 
although  it  can  form  no  part  of  the 
statute  law  of  the  state  or  nation, 
is  nevertheless  a  statute  for  the 
purposes  of  construction,  until 
ascertained  to  be  void.  A  defini- 
tion of  statutes,  for  this  purpose, 
may  consequently  discard  the  ele 
ment  of  constitutionality,  so  far  as 
relates  to  the  substance  of  the  en- 
actment (except,  in  so  far  as  the 
presumption  against  unconstitu- 
tional design  affects  the  construc- 
tion of  the  language  :  see  post,  §§ 
178-181),  but  must  take  into  account 
the  element  of  constitutionality,  so 
far  as  relates  to  the  formal  requi- 
sites of  the  enactment.  It  is  be- 
lieved that  the  definition  of  a  stat- 
ute as   "The   written  will  of  the 


§  1]  LITERAL    INTERPRETATION.  3 

facts  presented  to  tlie  interpreter  falls  within  it.  When  the 
intention  is  expressed,  the  task  is  one  of  verbal  construction 
only;  bat  when,  as  occasionally  happens,  the  statute 
expresses  no  intention  on  a  question  to  which  it  gives  rise, 
and  on  which  some  intention  must  necessarily  be  imputed 
to  the  Legislature,  the  interpreter  has  to  determine  it  by 
inference  grounded  on  certain  legal  principles.  An  Act,  for 
instance,  which  imposes  a  penalty,  recoverable  summarily, 
on  every  tradesirian,  laborer  and  other  person  who  carries 
on  his  worldly  calling  on  a  Sunday  would  give  rise  to  a 
question  of  the  former  kind,  when  it  had  to  be  determined 
whether  the  class  of  persons  to  which  the  accused  belonged 
was  comprised  in  the  prohibition.  But  two  other  questions 
arise  out  of  the  prohibition  :  is  the  offender  indictable  as 
well  as  punishable  summarily  ?  and,  is  the  validity  of  a 
contract  entered  into  in  contravention  of  the  Act,  affected 
by  it  ?  On  these  corollaries  or  necessarj'^  inferences  from 
its  enactment  the  Legislature,  though  silent,  must  never- 
theless be  held  to  have  entertained  some  intention,  and  the 
interpreter  is  bound  to  determine  what  it  was. 

The  subject  of  the  interpretation  of  a  statute  seems  thus 
to  fall  under  two  general  heads  :  what  are  the  principles 
which  govern  the  construction  of  the  language  of  an  Act  of 
Parliament ;  and  next,  what  are  those  which  guide  the 
interpreter  in  gathering  the  intention  on  those  incidental 
points  on  which  the  Legislature  is  necessarily  presumed  to 
have  entertained  one,  but  on  which  it  has  not  expressed 
any." 

Legislature  solemnly  expressed  ac-  vey.     Construction,   on  the  other 

cording  to  the  forms  necessary  to  hand,   is  the  drawing   of  conclii- 

constitute  it  the  law  of  the  state  "  sions,  respecting  subjects  that  lie 

(3  Bouvier,  Law   Diet.   p.   543).  is  beyond  the  direct  expressions  of  the 

unexceptionable.       And     in    this  text,  from  elements    known  from 

sense  the  phrase   "Statute  law,"  and  given  in  the  text.     Interpreta- 

in  the  opening    sentence    of  this  tion  only  takes  place  if  the   text 

work,  is  to  be  understood.  conveys  some  meaning  or  other. 

*  "  Interpretation    differs    from  But    construction    is    resorted   to 

construction  in  that  the  former  is  when,  in  comparing  two  different 

the  art  of  finding  out  the  true  sense  writings  of  the  same  individual,  or 

of  any  form  of  words  ;  that  is,  the  two  different   enactments  by  the 

sense  which  their  author  intended  same    legislative    body,    there    is 

to  conve\'  ;  and  of  enabling  otiiers  found  contradiction    where  there 

to  derive  from  them  the  s.ime  idea  was  evidently  no  intention  of  such 

which  the  author  intended  to  con-  contradiction  one  of  another,    or 


LITERAL    INTERPRETATION. 


§  2.  Primary  Rule  of  Literal  Interpretation.— The  first  and 
most  elementary  rule  of  construction  is,  that  it  is  to  be 
assumed  tliat  the  words  and  phrases  are  used  in  their  tech- 
nical meaning  if  they  have  acquired  one,  and  in  their  popu- 
lar meaning  if  they  have  not,  and  that  the  phrases  and  sen- 
tences are  to  be  construed  according  to  the  rules  of  gram- 
mar;  and  from  this  presumption  it  is  not  allowable  to 
depart,  unless  adequate  grounds  are  found,  either  in  the 
context  or  in  the  consecpienccs  which  would  result  from  the 
literal  interpretation,  for  concluding  that  that  interpretation 
does  not  give  the  real  intention  of  the  Legislature  {a).  [It 
is  said  that  the  fixed  technical  meaning  of  a  word  must  be 
given  to  it  when  used  in  a  statute,  unless  the  context  shows 
an  intention  to  use  it  in  a  different  sense  ;'  whilst,  under  a 
similar  limitation'  words  of  common   use*  are  to  be  under- 


wlicrc  it  happens  Ihat  part  of  a  writ- 
ing or  declaratiou  contradicts  tlie 
rest.  Wlien  tliis  is  the  case,  and 
tlie  nature  of  the  document  or 
declaration,  or  what  ever  else  it  may 
he,  is  sucli  as  not,  to  allow  us  to 
consider  the  whole  as  being  invali- 
dated by  a  partial  or  other  contra- 
diction, then  resort  must  be  had 
to  construction  ;  so,  too,  if  required 
to  act  in  cases  which  have  not  been 
foreseen  by  the  framers  of  those 
rules,  by  which  we  are  neverthe- 
less obliged,  for  some  binding 
reason,  I'aitli fully  to  regulate  as 
well  as  we  can  our  action  respecting 
the  unforeseen  case.  In  common 
tise,  however,  the  word  construction 
is  generally  employed  in  the  law  in 
a  sense  embracing  all  that  is  proper- 
ly covered  by  both  when  each  is 
used  in  a  .sense  strictly  and  techni- 
cally correct:"  Cooley,  Const . 
Lnn.  49-50, — and,  it  may  be  added, 
in  common  use,  the  words  con- 
struction and  interpretation  are 
used  as  synonymous  and  inter- 
changeable. 27(6'?/  are  so  used 
ihronfjhoul  this  work. 

(a)  Cac.  Ab.  Statute,  I.  2  ;  Grot. 
b.  3,  c.  16,  ss.  2,  3  ;  Puff.  L.  N.  b. 
5,  c.  12  ;  Warburton  v.  Loveland, 
Tluds.  &  Br.  G48  ;  liecke  v.  Smith, 
2  yi.  &  \V.  101  ;  Everett  v.  WelN, 
2  M.  &  Gr.  209  ;  U.  v.  Pease,  4  B. 
&  Ad.  41  ;  McDougal  v.  Patenson, 


11  0.  B.  755.  2  L.  M.  &  P.  ()81  ; 
Malhm  v.  May,  13  M.  &  W.  511  ; 
Mattison  v.  Harl,  14  0.  B.  385  -.per 
Maule,  J.,  in  JefTrevs  v.  Boosoy,  4 
H.  L.  815,  24  L.  J.  Ex.  89  ;  per 
Lord  Wensleydale  inGrey  v.  Pear- 
son, 6  11.  L.  iOG,  2(3  L.  J.  (.'b.  481, 
and  Abbott  v,  Middleton,  7  H.  L. 
114.  28  L.  J.  Ch.  110;  R.  v.  Millis, 
10  CI.  &  F.  749,  per  Lord  Broug- 
ham ;  Attorney-General  v.  West- 
minster Chambers  Assoc,  1  Ex.  D. 
476,  per  Jessel,  M.  B.  ;  Cull  v. 
Austin,  L.  11.  7  C.  P.  234  ;  R.  v. 
Castro,  L.  R.  9  Q.  B.  360.  [A 
statutory  rule  that  "  all  words  and 
phrases  shall  be  construed  and 
understood  according  to  the  com- 
mon and  approved  usage  of  lan- 
guage" is  said  lobe  mere  1}'  declar- 
atory of  the  common  law  on  the 
subicct:  Bailey  v.  Com'th,  11  Bush. 
(Ky.)  G88.] 

3  Exp.  Hall,  1  Pick.  (Mass.)  261  ; 
Brocket  v.  R.  R.  Co.,  14  Pa.  St. 
211  ;  State  v.  Smith,  5  Humph. 
(Tenn.)  261. 

*  Allen  v.  Ins.  Co.,  2  Md.  111. 

5  Schriefer  v.  Wood,  5  Blatehf. 
215  ;  VVetumpka  v.  AYinler,  29 
Ala.  651  ;  Pavers  v.  Glass,  22  Id. 
621  ;  (Jrcen  v.  Miller,  32  Miss. 
650 ;  Quiiiiey  v.  Gorham,  5  Cal. 
418 ;  Gross  v.  Fowler,  21  Id.  392  ; 
Canal  Co.  v.  Schroeder,  7  La.  An. 
015  ;  Parkinson  v.  State,  14  Md.. 


§  3]  LITERAL    INTERPRETATION.  5 

stood  in  their  natnnil,  plain,  ordinary  and  genuine  si^^nifica- 
tion  as  applied  to  the  subject  matter  of  tlie  enactment.*] 

§  3.  Common  Law  Meaning  of  Words.— [Wliere  a  term  used 
in  a  statute  has  acquired  at  common  law  a  settled  meaning, 
ithat  is  ordinarily  the  .technical  meaning  which  is  to  be  given 
to  it  in  construing  the  statute.'  Tlius  it  vv^as  held,  that,  in 
ascertaining  who  is  meant  by  "  next  of  kin,"  under  a  statute 
of  descents  and  distributions  of  Illinois,  the  computation  must 
be  made  according  to  the  rules  of  the  common  law,  which 
includes  only  those  who  are  legitimate,  unless  a  different 
intention  is  clearly  manifested  f  that  tlie  grant  by  a  statute 
of  a  right  to  a  railroad  company  to  enter  upon  land  and  to 
appropriate  so  much  thei'eof  as  might  be  necessary  for  its 
•railroad,  included,  according  to  the  common  law  signifi- 
cance of  the  word  land  as  embracing  .everything  fixed  to 
the  ground,  the  right  to  remove  a  dwelling  house  ;^  that  a 
statute  authorizing  courts  to  grant  divorces  wliere  the 
alleged  marriage  "was  procured  by  fraud"  must  be  under- 
stood to  mean  such  fraud  as  would,  at  connnon  law,  i-ender 
the  marriage  void  ;'"  that  a  statute  giving  dower  in  lands  of 
which  the  husband  was  seized  would  not  include  those  in 
which  his  interest  was  a  mere  contingent  remainder ;"  that 
an  act  authorizing  a  sale  of  land  on  the  second  Monday 
after  the  "  term  "  of  court  at  which  judgment  was  rendered 
would  be  complied  with  by  a  sale  on  the  second  Monday 
after  the  first  or  last  day  of  the  term,  a  term  being  in 
law  regarded  as  one  day.'^     The  reason,  in  all  such  cases,  for 

184  ;  En£?elking  v.  Von  Wamel,  20  of  the  civiliaus,  etc.:   Lux  v.  Ilag- 

Tex.  469?  gin,  G9  Cal.  2o5. 

^  Op.  of  Justices,  7  Mass.   523.  ^  JMcCool  v.  Smith,  supra. 

See  as  to  construction  of  words  in  '  Brocket  v.  II.  R.  Co.,  supra, 

their   technical  or   popuhu-  sense,  '<>  Allen's  Ai)p., supra:  thus  exclu- 

post,  ^^  74-7!).  ding  the  case  of  mere  incontinence 

■»  Ri'cev.  R.H.Co.,lBlack358;MG  on  the  pnrt  of  tlie  wife  before  inar- 
Oool  V.  Sniitii,  Id.  459;  U.  S.  v.  riage  and  failure  on  her  part  to  tell 
Magill,  1  Wash.  463  ;  4  Dall.  426  ;  her  ir.lended  husband  about  it, 
Exp.  Vincent,  26  Ala.  145  ;  but  making  it  a  question  for  the 
Brocket  v.  R.  R.  Co.,  14  Pa.  St.  inry  whether  or  not  there  was  fraud 
241  ;  Allen's  App.,  09  Id.  196  ;  in  a,  case  of  actual  pregnancy,  re- 
Adams  V.  Turrcniine,  8  Ireil.  L.  sultin'j;  from  such  inconiinence,  at 
(N.  C.)  147;  Apple  v.  Apple,  1  tlie  lime  of  m  irriage,  and  failure 
Head  (Tenn.)  34S.  And  an  act  to  di-close  the  same:  Ibiil. 
adopting  the  common  law  adopts  "  .\pplc  v.  Apple,  supra. 
Ihe  English  common  law,  not  that  '-  Bestor  v.  Powell,  7  111.  119. 


6  LITKRAI.    INTiatPKETATION.  [§  4 

adopting  tlie  technical,  common    law   sense   of    words   is, 
"  because  they  have  a  definite  meaning,    which  is  supposed 
to  have  been   understood  by  those  who  wore,  or  ought  to 
have  been  learned  in  the  law."'"    And  the  rule  applies  equally 
in  State  and  Federal  Courts,  as  to  statutes  of  state  legisla- 
tures and  of  Congress;'*  the  exception  in  all  cases  of  con- 
sti-nctiun   of  state  laws  being  where   by   constitutional  pro- 
vision the  rules  of  the  common  law  are  made  inapplicable  a& 
rules     of    construction."      Accordingly    the    meaning    of 
"murder,"    "  robbery,"  in  an  act  of  Congress,  unexplained, 
is  to  be  determined  by  the  common  law,'"  and  so  the  word 
"  forfeiture,"    with  relation    to    the   time  when    the   same 
should  take  effect  as  to  personalty  or  realty,  when  the  stat- 
ute  leaves   the   intention    of    Congress   in    this    particular 
undefined."] 

8  4.  Language  admitting  of  only  one  meaning. — When,  indeed, 
the  language  is  not  only  plain  but  admits  of  but  one  meaning, 
the  task  of  interpretation  can  hardly  be  said  to  arise  [and 
"  those  incidental  rules  which  are  mere  aids,  to  be  invoked 
when  the  meaning  is  clouded,  are  not  to  be  regarded  "'H. 
It  is  not  allowable,  says  Yattel,  to  interpret  what  has  no  need 
of  interpretation  {a).  Absoluta  sententia  expositore  non 
eo-et  {h).  Such  language  best  declares,  without  more,  the 
intention  of  the  lawgiver,  and  is  decisive  of  it  {g).  The 
Lefnslatnre  must  be  intended  to  mean  what  it  has  plainly 
expressed,  and  consequently  there  is  no  room  for  construction 
{d).  [It  is,  therefore,  only  in  the  construction  of  statutes 
whose  terms  give  rise  to  some  ambiguity,  or  whose  gram- 
matical construction  is  doubtful,'"  that  courts  can  exercise 
the  power  of  controlling  the  language  in  order  to  give  effect 

1' Brocket  v. R.  R.  Co.,  supra,  p.  nett,    1   T.    R.    96;    The     Sussex 

243.  Peeriin:e,  11  CI.  &  F.  143  ;   U.  S.  v. 

'•*  See  McCool   V.  Smith,  supra  ;  Hurt  well,  6  Walliice,  395  ;  U.  S.  v. 

Rice  V.  R.  R.  Co.,  supra.  Wiltbcrger,  5  Wheat.  9r).     [Drylus 

"  Rice  V.  R.    R.    Co.,  supra.  v.  ]iriil>;;es.  45  Miss.  247. J 

16  a.  S.  V.  Magill.  supra  ;   U.  S.  (d)  Per  Parke,  J.,  in   R.  v.  Ban- 

V.  Jones,  3  Wash.  201).  hury,   1  A.  &  E.  142  ;   per  Cur.  in 

n 'IMi- Kate  Heron,  6  Sawyer  lOG.  Fisher   v.   Bright,  3   Crancli,  399. 

i«  Western  Un.  'I'el.  Co.  v. "District  |  Scdgw.,  194  ;   Case  v.  Wildridge, 

of  Columbia.  2  CviiU:  Rep.  G94.  4  Ind.  51.] 

(^6)  Law  of  N.,  b.  2,  s.  263-  '^  George  V.  B'd  of  Educ'n,  33 

(0)  2  last.  533.  Ga.  344. 

(c)  Per  Bullcr,  J.,  in   R.  v.  Hod- 


§4] 


LTTKRAL    INTERPRETATION. 


to  wliat  they  suppofec  to  have  been  the  rciil  intention  of  the 
law  makers,'"'  Where  the  words  of  a  statute  are  plainly  ex- 
pressive of  an  intent,  not  rendered  dubious  by  the  context," 
the  interpretation  must  conform  to  and  carry  out  that  intent." 
It  matters  not,  in  such  a  case,  what  the  consequeuces  may 
be."  "  It  has,  therefore,  been  distinctly  stated,  from  early 
times  down  to  tiie  present  day,  that  judges  are  not  to  mould 
the  language  of  statutes  in  order  to  meet  an  alleged  con- 
venience or  an  alleged  equity  ;  are  not  to  be  influenced  by 
any  notions  of  hardship,  or  of  what  in  their  view  is  right  and 
reasonable  or  is  prejudicial  to  society  ;  are  not  to  alter  clear 
words,  though  the  Legislature  may  not  have  contemplated 
the  (ionsequences  of  using  them  ;  are  not  to  tamper  with 
words  for  the  purpose  of  giving  them  a  construction  which 
is  'supposed  to  be  more  consonant  with  justice'  than  their 
ordinary  meaning."'"]  Where,  by  the  use  of  clear  and  un- 
equivocal language,  capable  of  only  one  meaning,  anything 
is  enacted  by  the  Legislature,  it  must  be  enforced,  even 
though  it  be  absurd  or  mischievous  (a).  If  the  words  go 
beyond  what  was  probably  the  intention,  effect  must  never- 
theless be  given  to  them  (5).     They  cannot  be  construed. 


20  Newell  v.  People,  7  N.  Y.  97  ; 
Barstow  v.  Smith,  Walk.  (Mich.) 
394 ;  Bidwell  v.  Whittaker,  1 
Mich.  4(39  ;  and  see  also  McGliiskey 
V.  Cromwell,  11  N.  Y.  593. 

2^  Douglass  V.  Cliosea  Freehold- 
ers, 38  N.  J.  L.  214. 

^-  Bradbury  v.  Wagenborst,  54 
Pa.  St.  183  ;  S.  P.,  U.  S.  v.  War- 
ner, 4  McLean,  4(J3  ;  U.  S.  v.  Rags- 
dale,  Ilempst.  497  ;  Johnson  v. 
R.  R.  Co.,  49  N.  Y.  455  ;  Peop^le 
V.  Shooumaker,  G3  Barb.  (N.  Y.) 
49  ;  Pcarce  v.  Atwood,  13  I\[ass. 
324  ;  Doane  v.  Phillips,  12  Pick. 
(Mass.)  223  ;  Bartlett  v.  Jlorris,  9 
Port.  (Ala.)  286  ;  Howard  Associa- 
tion's App.,  70  Pa.  St.  344  ;  Farrcll 
Foundry  v.  Dart,  2G  Conn.  376  ; 
Fitzi>alrick  v.  Gibhart,  7  Kan.  35  ; 
State  V.  Washoe  Co.,  G  Nev.  104. 

«^  Hyatt  V.  Taylor,  42  N.  Y. 
259;  Benton  v.  VVickwire,  51  Id. 
226  ;  Rosenplaenler  v.  Rossele. 
Id.  2G2  ;  Rogers  v.  Goodwin,  2 
Mass.  475  ;  Langdon  v.  Potter,  3 
Id.  215,  221  ;  Gore  v.  Brazier,  Id. 


523  ;  Ayers  v.  Knox,  7  Id.  306 
Putnam  v.  Longlev,  11  Pick. 
(Mass.)  487,  490  ;  Kirlpatrick  v. 
Byrne,  25  Miss.  57 ;  Tyman  v. 
Walker,  35  Cal.  634  ;  Coltin  v. 
Rich,  45  Me.  507  ;  Eucking  v. 
Simmons,  28  Wis.  272  ;  Collins  v. 
Carman,  5  Md.  503  ;  Bosley  v. 
Matlingley,  14  B.  Mon.  (Ky.)  89; 
Dudley  v.  Reynolds,  1  Kan.  285  ; 
R.  V.  Tonbridge  Overseers,  L.  R. 
3  Q.  B.  D.  342  ;  and  see  cases  ia 
two  preceding  notes. 

•■'■>  Wilberforce,  Stat.  Law.  p.  116. 

(a)  Per  Lord  Campbell  in  R.  v. 
Skeen,  28  L.  J.  M.  C.  94,  Bell,  97  ; 
7?er  Jervis,  C.  J.,  in  Abley  v.  Dale, 
11  C.  B.  391,  2  L.  M.  &  P.  443,  21 
L.  J.  104  ;  per  Pollock,  C.  B..  in 
Miller  v.  Salomons,  7  Ex.  475.  21 
L.  J.  Ex.  197  ;  per  Lord  Brougham 
in  Gwvnne  v.  Burnell,  6  Bing. 
N.  C.  5.^9  ;  lie  British  Farmers,  &c. 
Co.,  48  L.  J.  Ch.  5G,  and  Crawford 
-V.  Spooner,  6  Moo.  9.  See  Sneed 
V.   Com..  6  Dana  (Ivy.)  339. 

(i)  Nolly  V.  Buck,  8  B.  &  C.  164. 


LITERAL    INTERPRETATION. 


[§5 


contrary  to  their  moaning,  as  embracing  or  excluding  cases 
merely  because  no  good  reason  appears  why  they  should  be 
excluded  or  embraced  (a).  However  unjust,  arbitrary  or  in- 
convenient the  intention  conveyed  may  be,  it  must  receive 
its  full  effect  {h).  [Indeed,  it  is  said  that  it  is  only  when  all 
other  means  of  ascertaining  the  legislative  intent  fail,  that 
courts  may  look  to  the  effects  of  a  law  in  order  to  inflnence 
their  construction  of  it.''  But,  whilst  it  may  be  conceded, 
that,  where  its  provisions  are  ambiguous  and  the  legisla- 
tive intent  is  doubtful,  the  effect  of  several  possible 
constructions  may  be  looked  at,  in  order  to  determine 
the  choice,""  it  is  very  certain,  that]  when  once  the  inten- 
tion is  plain,  it  is  not  the  province  of  a  Court  to  scan 
its  wisdom  or  its  policy  {c).  Its  duty  is  not  to  make  the  law 
reasonable,  but  to  expound  it  as  it  stands,  according  to  the 
real  sense  of  the  words  {d). 

§  5.    Considerations  of  Policy [What  is  called  the  "  policy  " 

of  the  government,  with  reference  to  any  particular  legisla- 
tion, is  said  to  be  too  unstable  a  foundation  for  the  con- 
struction of  a  statute."  The  clear  language  of  a  statute  can 
be  neither  restrained  nor  extended  by  any  consideration  of 
supposed  wisdom  or  policy.'"'*  So  long  as  a  legislative  enact- 
ment   violates   no  constitutional    provision   or   principle,  it 


(a)  Pike  v.  Hoare,  Eden,  184,  per 
Lord  iS'ortliiugtou  ;  per  Cur.  in 
Dean  v.  IJoid,  10  Peters,  524. 
[Ogdeii  V.   Stronu:.  2  Paine,   584.] 

(6)  The  Orminiental  Woodwork 
Co.  V.  Brown,  2  II.  &  C.  63  ;  33  L. 
J.  Ex.  190,  per  Martin,  B.,  and 
Bramwcll,  B,  ;  Miicboiise  v.  PiCU- 
nell,  1  CI.  &  F.  546,  per  Parke.  J. ; 
R  ■».  The  Poor  Law  Commission- 
ers, 6  A.  &  E.  7  ;  Biffin  v.  Yorke. 
5  Man.  &  Gr.  437,  per  Erskine,  J.  ; 
May  V.  Grant,  L.  K,  7  Q.   B.   377. 

(c)  Per  Lord  Ellenborougl)  in  U. 
V.  Watson,  7  East,  214,  and  K.  r. 
Staffordshire,  12  East.  572  ;  K.  c. 
Hodnett,  1  T.  K.  100,  per  Lord 
Mansticld  ;  R.  t\- Worcestershire, 
3  P.  &  D.  465,  12  A.  &  E.  283,  ?)<;?• 
Lord  Denman  ;  per  Bramwcll,  B., 
in  Arclier  v.  James,  2  B.  «&  S.  61  ; 
Miller  v.  Salomons,  7  Ex.  475.  per 
Pollock,  C.  B.  ;  Ex[).  Att water,  5 
Ch.  D.  30,  per  James,  L.  J. 


25  Dudley  V.  Reynolds,  1  Kan.  285. 

'"'  See  Gore  v.  Bazier,  3  Mass. 
523,  539  ;  Langdon  v.  Potter,  Id. 
215,  221  ;  Collins  v.  Carman,  5  Md. 
503  ;  Cearfoss  v.  State,  42  Id.  403  ; 
Bosley  v.  Mattingley.  14  B.  ]\Ion. 
(Ky.)  89  ;  and  post,  g§  113  et  seq. 

{(l)  Biffin  V.  Yorke,  6  Scott,  IS. 
R.  234,  5  IM.  &  Gr.  428,  per  Cress- 
well,  J.  See  ex.  gr.  Plasterers'  Co. 
V.  Parish  Clerks'  Co.,  G  Ex.  030, 
20  L.  J.  362.     [See  post,  §  8.] 

"  Hiidden  v.  Collector,  5  Wall. 
107  ;  Munic.  Build.  Soc'y  v.  Kent, 
L.  R.  9  App.  Cas.  273. 

2^  Iladden  v.  Collector,  supra  ; 
Hyatt  V.  Taylor,  42  N.  Y.  259  ; 
Horton  v.  School  Comm'rs.  43  Ala. 
598;  Com'th  v.  Shopp,  2  Woodw. 
(Pa.)  123  ;  Be  Powers,  25  Vt.  265  ; 
State  V.  Liedke,  9  Neb.  468  ; 
Reynolds  v.  Holland,  35  Ark.  56  ; 
Miller  v.  Childress,  2  Humph. 
(Tenn.)  320. 


I  6]  T.ITKRAL    INTEUl'KKTA'JIUN.  9 

must  be  deemed  its  own  sufticieiif  and  conclusive  evidence 
of  the  justice,  propriety  juid  policy  of  its  passage.^*  The 
language  of  Mr.  Justice  Story,  concerning  constitutional  con- 
struction, applies  almost  equally  to  that  of  statutes  :  "  Argu- 
ments drawn  from  impolicy  or  inconvenience  ought  here  to 
be  of  no  weight.  The  only  sound  principle  is  to  declare  ita  lex 
scripta  est,  to  follow  and  to  obey  ;  nor,  if  a  principle  so  just 
could  be  overlooked,  could  there  be  well  found  a  more  unsafe 
guide  or  practice  than  mere  policy  and  convenience.  Men  on 
such  subjects  complexionally  differ  from  each  other.  The 
same  men  differ  from  themselves  at  different  times.  .  .  . 
The  policy  of  one  age  may  ill  suit  the  wishes  or  the  policy 
of  another.'""] 

§  6.  Consequences.— It  has  been  Said  that  though  vested 
rights  are  divested,  those  who  have  to  interpret  the  law  must 
give  effect  to  it  {a).  And  they  are  bound  to  do  this  even 
when  they  suspect  (on  conjectural  grounds  only)  that  the 
language  does  not  faithfully  express  what  was  the  real  in- 
tention of  the  Legislature  when  it  passed  the  Act,  or  would 
Jiave  been  its  intention  if  the  specitic  case  had  been  proposed 
to  it.  ["  Even  when  a  court  is  convinced  that  the  Legisla- 
ture really  meant  and  intended  something  not  expressed. by 
the  phraseology  of  the  Act,  it  will  not  deem  itself  author- 
ized to  depart  from  the  plain  meaning  of  the  language  which 
is  free  from  ambiguity.""]  "It  may  have  been  an  over- 
sight in  theframers  of  the  Act,"  says  Parke,  B.,  in  one  case, 
"but  we  must  construe  it  according  to  its  plain  and  obvious 
meaning"  {h).       [Though    the   consequence   should    l)e   to 

29 "Flint,  &c.,  Co.   V.   WoodluiU,  can,    of      course,    be      no      more 

25  IMich.  1)9.   S.  P.,  People  v.  Hay-  "co<i(;ut  evidence,"  than  the  plain, 

den,   50   N.    Y.    525  ;    People    v.  unambiguous      language      of     the 

Brlggs.  Id.   553;  Re  Lower  Chat-  Le<:i.slatiire  ilself. 

bam,  35  N.  J.  L.  497  ;  Jewell  v.  (^f)  Muiland  R.  Co.  v.  Pye,  10  Q. 

Weed,    18    Minn.    272  ;    and    see  B.  N.  S.  179,  pei-  Erie,  C.  J.  [See 

Baxter  v.  Tripp,  12  R.  I.  310.  post,  i?  283.] 

so  Story,  Const.,   ^  ^20;  post,  §j^  »' ISmith  v.    State,    66   Md.    215, 

507,524.  See  Jersey  City,  etc.  Co.  V.  217.     S.  P.,    Bradbury  v.    AVagen 

Consumer's  Gas  Co.,  40  N.  J.  Eq.  horst,    54     Pa.     St.    18^  ;   Wood- 

427.  Avhere  it   is  said,   that,  in  the  bury      v.     Berry,     18     Ohio      St. 

construction  of  astalute,  a  i)urpose  456.     And     see   St.   Louis,  etc.  R. 

to  disregard  what  is  recognized  as  R.    Co.    v.     Clark,    53    Mo.     2M; 

sound   public  policy,  shall  not  be  Hicks  v.  Jamison,  10  JMo.  A  pp.  35. 

attributed  to  the  Legislature  except  (6)  Nixon   v.    Phillips,    21   L.J. 

upon  most  cogent  evidence.     There  Ex.  90,  7  E.x.  192. 


10 


LITERAL    LNTEKPRETATloX.  [§  T 


defeat  the  object  of  the  act,  a  construction  not  supported  by 
the  lan<^uagc  of  it  cannot  be  imposed  by  the  court  in  order 
to  efFccJtuate  what  it  may  suppose  to  be  the  intention  of  the 
Legishiture/']  "Our  decision,"  says  Lord  Tenterden  (a), 
"may,  in  this  particuUir  case,  operate  to  defeat  the  object 
of  tlie  Act;  but  it  is  better  to  abide  by  this  consequence 
than  to  put  upon  it  a  construction  not  warranted  by  the 
words  of  the  Act,  in  order  to  give  effect  to  what  we  may 
suppose  to  have  been  the  intention  of  the  Legislature." 
[A  fortiori,  wliere  a  statute,  in  language,  clear,  positive  and 
direct  and  leading  to  no  absurdity,  gives  a  suitable  remedy 
for  an  existing  evil,  though  an  inadequate  one,  a  construction, 
which,  upon  the  ground  of  a  supposed  intention  of  the 
Legislature  to  give  a  more  effectual  one,  would  undertake 
to  enlarge  the  terms  of  the  Act,  would  be  unwarranted;" 
and  especially  in  the  case  of  penal  statutes,  a  failure  of 
justice  resulting  from  the  grammatical  and  natural  meaning 
of  their  terms  cannot  be  obviated  by  a  construction  which 
would  extend  the  language  beyond  such  meaning."  Again,] 
"I  cannot  doubt,"  says  Lord  Campbell,  {I)  "what  the 
intention  of  the  Legislature  was ;  but  that  intention  has  not 
been  carried  into  effect  by  the  language  used,  ...  It  is  far 
beCter  that  we  should  abide  by  the  words  of  a  statute,  than 
seek  to  reform  it  according  to  the  supposed  intention." 
"  The  Act,"  says  Lord  Abinger,  in  another  case  (c),  "  has 
practically  had  a  very  pernicious  effect  not  at  all  contem- 
plated ;  but  we  cannot  construe  it  according  to  that  result."" 

§  7.  In  short,  when  the  words  admit  of  but  one  meaning, 
a  Court  is  not  at  liberty  to  speculate  on  the  intention  of  .the 
Legislature,  or  to  construe  an  Act  according  to  its  own 
notions  of  what  ought  to  have  been  enacted  {d).     Nothing 

s2  Frye  v.  R.  R.  Co..  73  II.  399  ;  ISI.  &  W.  395.     See  also  per  Lord 

Leoiii  V.  Tavlor,  20  Mi(;li.  148.  Deiimau,  in  R.  v.  Mabe.  3  A.  &  E. 

(a)  R.  V.  riaiham.  8  B.  &  C.  99  ;  531. 

and   see  per   Bnyley,   J.,  in    R.  v.  ^s  ggg  j^  j^ogt  able  discussion  of 

Slokc!  Damarel,  7  B.  &  C.  069.  tlie  principle  under  examination  im 

2^  K/.eldel  v.  Dixon,  3  Ga.  14G.  tbe  (li.sst'nling  opinion  of  Mr.  Jus- 

^  Remington   v.    State,  1    Oreg.  lice  Green,  in  Peiina.  R.  R.  Co.   v. 

281.     And' see  post,  c^  155.  Pittsbnrgli,  10-4Pa.  St.  522.  543.  seq. 

l/j)  Coe  V.  Lawrence,  1  E.  «&  B.  (^0  Per  Cur.  in   York   &  N.  Mid- 

510  22  L.  J.  140.  land   R.  Co.  v.  R.,  1   E.  &  B.  864, 

(c)  Ally.   Geul.  v.   Lockwood,  9  22  L.  J.  Q.  B.  230. 


§  8]  LITERAL    INTEKPRETATION.  11 

could  be  more  dangerous  than  to  make  such  considerations 
the  ground  of  construing  an  enactment  that  is  quite  com- 
jilete  and  unambiguous  in  itself.  ["The  moment  we  depart 
from  the  plain  words  of  the  statute,  according  to  their 
ordinary  and  grammatical  meaning,  in  a  hunt  for  some 
intention  founded  on  the  general  policy  of  the  law,  we  find 
ourselves  involved  in  a  '  sea  of  troubles.'  Difficulties  and 
contradictions  meet  us  at  every  turn.'"^'  Indeed.]  to  depart 
from  the  meaning  on  account  of  such  views,  is,  in  truth,  not 
to  construe  the  Act,  but  to  alter  it  {a).  But  the  business  of 
the  interpreter  is  not  to  improve  the  statute ;  it  is,  to  ex- 
pound it.  [Whilst  he  is  to  seek  for  the  intention  of  the 
Legislature,"  that  intention  is  not  to  be  ascertained  at  the 
expense  of  the  clear  meaning  of  the  words.*']  The  question 
for  him  is  not  what  the  Legislature  meant,  but  what  its 
language  means  (J)). 

§  8.  Language.  Intent.  Judicial  Legislation. — [It  is  inaccu- 
rate to  speak  of  the  meaning  or  intent  of  a  statute  as  some- 
thing separate  or  distinct  from  the  meaning  of  its  language. 
"  The  intention  of  the  Legislature  is  to  be  ascertained  by 
means  of  the  words  which  it  has  used,  and  though  these 
words  are  often  modified,  though  their  literal  sense  is  not 
always  adopted,  though  they  are  sometimes  strained,  trans- 
ported, treated  as  inadequate  or  as  superfluous,  they  are  still 
the  only  interpreters  of  the  mind  of  the  Legislature."" 
"  Index  animi  sermo.""  "  The  court  knows  nothing  of  the 
intention  of  an  act,  except  from  the  words  in  which  it  is 
expressed,  applied  to  the  facts  existing  at  the  time  ;'""  "  the 
meaning  of  the  law  being  the  law  itself.""  It  is  upon  this 
ground  that   the   rule  must  have   its   rational    foundation, 

3s  Dame's  App.  62  Pa.  St.  417,  ?je/- Cockburn,  C.  J.,  in  Palmer  v. 

423,  per  Sharswood,  J.  Thatcher,  3  Q.  B.  D.  353,  47  L.  J. 

{n)  Per      Lord      Brougham      in  M.  C.  58;;?er  Lord   Coleridge,  in, 

Gwyune  v.  Burnell,  6  Bing.  N.  C.  Coxhcad  v.  Mullis,  3  C.  P.  D.  439, 

5G  ;  j)er  Lord  Wcstburviu  Exp.  St.  7  L.  J.  761. 

Sepulchre's.  33  L.  J.  Ch.  373  ;  per  ^9  ^yilberforce,    Stat.     Law,     p. 

Grove,  J.,  in   Allklns  v.  Jupe,  L.  102. 

R  2  C.  P.  385.  ■'*'  Edrich's   Case,    5  Rep.    at  p. 

31  .lames  v.  Patten,  6N.  Y.  9, 13.  118  b. 

38  Leoui  V.  Taylor,  20  Mich.  148;  '"Logan  v.  Earl  Courtown,    13 

S.  P.,  Frye  v.  R.  R.   Co.,   73  111.  Beav.  22. 

390.  •*-  Reiser  v.  Saving  Fund  Ass'n,, 

{h)  Wigram,  Interp.  Wills,  p.  7  ;  39  Pa.  St.  137,  144. 


12  LITERAL    INTEKPKETATION.  [§  9 

wliicli,  wliere  the  words  can  bc:ir  but  cue  meaning,  declares 
that  there  is  no  room  for  interpretation.  If  the  construc- 
tion of  a  statute  were  not  essentially  the  construction  of 
its  language,  there  could  be  no  reason  for  binding  a  court 
to  the  clear  meaning  of  an  act  working  an  injustice  or  incon- 
venience unforeseen  by  the  Legislature.  Yet  it  is  clear, 
that,]  to  give  it  a  construction  contrary  to,  or  different  from 
that  which  the  words  import  or  can  possibly  import,  is  not 
to  intcrpi-et  law,  but  to  make  it ;  and  Judges  are  to  remem- 
ber that  their  office  is  jus  dicere,  not  jus  dare  («).  [Every 
de])arture  from  the  clear  language  of  a  statute  is,  in  effect, 
an  assumption  of  legislative  powers  by  the  court."  It  has, 
indeed,  been  intimated  that  this  is  the  case  wherever  the 
court  permits  the  consideration  of  consequences  to  dictate 
the  construction  of  a  doubtful  act."  "  The  judge  must 
decide,  but  the  law  has  not  spoken.  It  is  evident  that  his 
functions  necessaiily  become  to  a  certain  extent  legisla- 
tive."*' It  is  submitted,  however,  that  this  is  inaccurate. 
If  the  judge  were  to  guess  at  the  interpretation,  and  arbi- 
trarily fix  the  result,  no  doubt  it  would  be  true  that  he 
would  be  assuming  the  functions  of  a  legislator.  But  so 
long  as  the  interpretation  of  an  ambiguous  enactment  pro- 
ceeds upon  ascertained  legal  principles,  which  "those  who 
were  or  ought  to  have  been  learned  in  the  law  "  must  be 
supposed  to  have  understood,"  and  with  reference  to  which 
the  act  must  be  presumed  to  have  been  framed  and  passed, 
it  cannot  be  said  that  the  result  is  a  new  law,  or  even  a 
departure  from  the  language  of  the  statute  consti'ued.  It  is 
simply  giving  effect  to  that  language  as  understood  in  the 
]\(y\\t  of  recognized  rules  and  presumptions  relating  to 
legislative  language.] 

§   0.   Application    of  the   Principle    of   Literal   Interpretation, — 
Though  this   rule   appears  so   obvious,  it    is    so  frc(picnt!y 

(a)  Lord  Bacon,  Essay  on  Judica-  **  See    Dudley   v.    Keyuolds,    1 

ture.      Per  Pollock,  C.  B..  in  Rod-  Kan.  285. 

risrues    v.  Meliuisli,    10   Ex.    116.  ^'^  Sedgwick,  Constr.  of   Stat.  & 

[Vor.v  V.  Cousidine.  G  Wall.  458.]  Const.,  p.  26G. 

«  Brewer   v.   BlouL^her,   14  Pet.  ■»»  See  Brocket  v.  R.   R.   Co.,  14 

178;    Cearfoss  v.    State,  42   Md.  Pa.      St.     241,     248;     Com'tli    v. 

403  Cliurchill,    2     Met.     (Mass.)    118  ; 

State  V.  Brooks,  4  Conu.  44G. 


9] 


LITERAL    IXTi:RPKf:TATION. 


13 


uppealed  to  tliat  it  is  advisable  to  illustrate  it  by  some  exam- 
ples to  show  its  general  scope  and  the  limits  of  its  applica- 
tion. It  was  repeatedly  decided  at  law  {a),  for  instance,  tliat 
the  statntes  of  limitations  which  enact  that  actions  sliall  not 
be  brought  after  the  lapse  of  certain  periods  fi'oni  the  time 
when  the  cause  of  action  accrued,  barred  actions  brought 
after  the  time  so  limited,  though  the  cause  of  action  was 
not  discovered  or,  practically,  discoverable  by  the  injured- 
party  when  it  accrued,  or  was  even  fraudulent!}'  concealed 
from  liim  by  the  w^-ong-doer,  until  after  the  time  limited 
by  the  Act  had  expired  {h).  The  hardship  of  such  decis- 
ions is  obvious,  but  the  language  admitted  of  no  other  con- 
struction. [Even  where  a  surve}',  the  making  of  which 
would  have  had  the  effect  of  taking  the  case  out  of  a  statute 
of  limitations,  was  prevented  by  legislation,  the  court 
refused  to  admit  an  exception/']  So,  if  an  Act  provides 
that  convictions  shall  be  made  within  a  certain  period  after 
the' commission  of  the  offense,  a  conviction  made  after  the 
lapse  of  that  period  would  be  bad,  although  the  prosecution 
had  been  begun  within  the  time  limited,  and  the  case  had 
been  adjourned  to  a  day  beyond  it,  with  the  consent,  or 
even  at  the  instance  of  the  defendant  (<?).     So,  when  an  Act 


{a)  Before  the  Judicature  Act  of 
1873  (s.  24). 

ib)  Short  V.    McCarthy,   3  B.    & 

A.  626  ;  Brown  v.  Howard,  2  B.  & 

B.  73  ;  Colvin  v.  Buckle,  8  :\I.  & 
W.  680  ;  Imperial  Gas  Co.  v.  Lou- 
don Gas  Co.,  10  Ex.  39  ;  Boiiomi 
V.  Bacldiouse.  E.  B.  &  E.  622,  27 
L.  J.  Q.  B.  378,  28  L.  J.  380,  34  L. 
J.  181,  9  H.  L.  503  ;  Smitli  v.  Fox, 
6  Hare,  386  ;  Violett  v.  ^ympson, 
27  L.  J.  Q.  B.  136  ;  Hunter  v.  Gib- 
bons. 1  II.  &  N.  459 ;  Lamb  v. 
Walker,  3  Q.  B.  D.  389.  As  to 
concealed  fraud,  see  the  cases  in 
equity  collected  in  Ecclesiastical 
Commissioners  V.  N.  E.  K.  Co.,  4 
Ch.  D.  845,  and  since  the  Judica- 
ture Act  of  1873,  Gibbs  v.  Guild, 
9  Q.  B.  D.  591,  51  L.  J.  Q.  B. 
313.  See  also  Kirk  v.  Todd,  21 
Ch.  D.  484.  ["The  idea  tliat 
implied  and  equitable  exceptions, 
which  the  Legislature  has  not 
made,  are  to  be  engrafted  by  the 
courts  on  a  statute  of  limitations  is 


now  generall}^  abandoned:"  Sedg- 
wick, Constr.  of  Sfat.,  &c.,  p.  277, 
citing  Dozier  v.  Ellis.  28  Miss.  730; 
Mclver  v.  Regan,  2  Wheat.  25. 
See  also  Allen  V.  ]\Iiller,  17  Wend. 
(N.  Y.)  202.  B'.it  see  First  3Iass. 
Turnp.  V.  Fisher,  3  JVIass.  201  ; 
Homer  v.  Fish,  1  Pick.  (Mass.) 
435.] 

'''Mclver  v.  Regan,  2  Wheat. 
25 

(c)  R.  V.  Bellamy.  1  B.  &  C.  500  ; 
R.  V.  Tolley,  3  East.  467  ;  Bellew 
V.  Wonfoni,  9  B.  &  C.  135 ;  Farrell 
V.  Tomlinsou,  5  Bro.  P.  C.  438  ; 
Adam  v.  The  Inhabitants  of  Bris- 
tol, 2  A.  &  E.  389  ;  R.  v.  Mainwar- 
ing.  E.  B.  &  E.  474,  27  L.  J.  M. 
C.  278.  I  See  West  v.  Comm'th,  2 
Woodw.  (Pa.)  61,  where  a  judg- 
ment entered  on  jMarcli  27.  1871, 
in  pursuance  of  an  agreement  of 
counsel  made  March  21,  to  take 
up  the  case  on  that  day  for  argu- 
ment, was  reversed  on  certiorari. 
the  oilence  having  been  committed. 


14  LITERAL    INTERPRETATION.  [§  10 

gives  to  persons  aggrieved  hj  ivu  order  of  justices,  a  certain 
period  after  tlie  making  of  the  order,  for  appealing  to  tlio 
Quarter  Sessions,  it  has  been  held  that  the  time  runs  from 
the  day  on  which  the  order  was  verbally  pronounced,  not 
from  the  day  of  its  service  on  the  aggrieved  person  {a). 
Even  when  tlie  order  is  made  behind  his  back,  as  in  the  case 
of  stopping  np  a  road,  the  time  runs  from  the  same  date, 
and  not  from  the  day  on  which  he  got  notice  of  it  (J),  not- 
withstanding the  manifest  hardship  and  injustice  resulting 
from  such  an  enactment  (c). 

§  10.  The  Welsh  Sunday  closing  Act  of  1881,  being  fixed 
to  come  into  operation  on  the  day  ''  next  appointed  "  for  the 
annual  licensing  meeting,  was  by  a  literal  construction  post- 
poned for  a  year  later  than  was,  in  all  probability  intended  ; 
but  the  Court  refused  to  avert  this  result  by  any  departure 
from  the  primary  meaning  of  the  words  {d).  If  an  Act  of 
Parliament  provides  that  n(^  deed  of  apprenticeship  shall  be 
valid  unless  signed  and  sealed  by  justices  of  the  peace,  the 
omission  of  the  seal  would  be  fatal  to  the  validity  of  the 
instrument  (e).  [So,  under  a  statute  requiring  the  certificate 
of  a  married  woman's  acknowledgment  of  a  written  instru- 
ment to  be  under  seal,  the  absence  of  a  seal  renders  the  in- 
strument invalid.""]  The  Bills  of  Sale  Act  requiring  an 
affidavit  of  the  due  attestation  as  well  as  of  the  execution  of 
the  deed,  the  omission  in  the  former  to  mention  the  attes- 
tation was  held  fatal,  although  the  attestation  clause  of  the 
deed  asserted  it  (/).     It  would  not  be  open  to  the  interpreter 

September  18,  1870,  and  the  gov-  {e)  R.  v.  Stoke  Damsirel,  7  B.  & 

erning  statute  requiring  the  con-  C.  563.    See  also  R.  v.  Mellingham, 

viol  ion   to     be   made    within    six  2  Cott.  492  ;  R.  v.  IMargram,  5  T. 

months  after  the  commission  of  tiie  R.  153  ;  R.  v.  St.   Peter's,   1   B.  & 

offence  1  Ad.  916  ;  11.  v.  St.  Paul's,  10  B.  & 

(a)  R.  V.  Derbyshire,  7  Q.  B.  193;  C.  12  ;  R.  v.  Staffordshire,  23  L. 
R.  V.  lluntinsrdonsliire,  1  L.  M.  &  J.  M.  C.  17. 

P.-  78;  Exp.  Johnson,  3   B.  &  S.  "  McLaurin  v.  Wilson,  16  S.  C. 

947;   R.    V.    Burnett.  1  Q.   B.    D.  402. 

558 ;   comp.    R.   v.    Shrewsbury.  1  (f)  Ford   v.   Kettle,   9  Q.  B.  D. 

E.  &  B.  711,  22  L.  J.  M.  C.  08.  139.     [So,    in   innumerable  cases, 

(b)  R.  V.  Staffordshire,  3  East,  in  this  country,  where  statutes 
151.  require  .separate  acknowledgements 

(c)  Per  Lord  Ellenborough,  Id.  by  married  women  of  the  fi-ee 
153.  execution  of  conveyances  of  their 

(d)  Pilchards  v.  McBride,  51  L.  property  interests,  and  the  affixing 
J.  M.  0.  15.  of  a  certificate  by  the  magistrate 


§  10]  LITERAL    TNTERPRKTATION.  15 

in  such  cases,  to  shut  his  eyes  to  the  formalities  required, 
because  he  deemed  them  unimportant,  or  because  a  hardship 
or  faihire  of  justice  miglit  be  the  consequence,  in  the  par- 
ticular case  before  him,  of  a  neglect  of  any  of  them. 

An  Act  which  enacted  that  a  pilot  was  to  deliver  up  his 
licence  to  the  pilotage  authorities  "whenever  required  to  do 
so,"  would  call  for  implicit  obedience  to  the  letter,  however 
arbitrarily  the  power  which  it  conferred  might  be  misused, 
and  although  the  withdrawal  of  the  license  would  in  effect 
amount  to  a  dismissal  of  the  pilot  from  his  employment  {a). 
The  Prescription  Act,  making  all  easements  indefeasible 
which  were  enjoyed  for  a  number  of  years  "  next  before 
some  suit  or  action  wherein  the  claim  or  matter"  was 
brought  in  question,  was  held  to  leave  the  title  to  everj-^ 
casement  inchoate  only,  no  matter  how  long  it  had  been 
uninterruptedly  enjoyed,  until  a  suit  or  action  was  brought, 
when  it  ripened  into  a  complete  right  (J).  The  Act  which 
provided  that  if  the  occupier  assessed  to  a  rate  ceased  to 
occupy  before  the  rate  was  wholly  discharged,  the  overseers 
should  enter  his  successor  in  the  rate  book,  and  the  outgoer 
should  not  be  liable  for  more  than  his  due  proportion,  was 
held  not  to  relieve  him  from  the  rest  of  the  rate,  when  the 
premises  remained  unoccupied  after  his  removal  (c). 

An  enactment  that  a  magistrate  might  on  the  application 
of  the  mother  of  a  bastard,  summon  its  putative  father  for 
its  maintenance,  within  twelve  months  from  its  birth,  would 
not  authorize  a  second  magistrate  to  issue  a  second  summons 
after  the  expiration  of  the  first  twelve  months,  merely 
because  the  summons  could  not  be  served  by  reason  of  the 
defendant  having  absented  himself,  and  could  not  be  renewed 
or  continued,  because  the  justice  who  hadissued  ithad  (\ied(d). 

taking    the     acknowledgment  at-  N.  S.  456,  ol  L.  J.  323. 
testing  such  procedure,  the  failure         (c)  St.  Werburgh  v.  Hutchinson, 

of  the  cerlirtcate  to  state  any  one  5  Ex.  D.  19  ;  32  &  33  Vict.  c.  41,  s. 

of  the  requisites  has  been  held  to  16.     See,  as  other  illustrations,  R. 

iuviilidate  the  instrument.]  v.  Mabe,  3  A.  &  E.  531  ;  Marsden 

(a)  Henry  v.  Newcastle  Trinity  v.  Savile  Foundry,  3  Ex.  D.  203  ; 

House,  8  E.  &  B.  723,  27  L.  J.  M.  Simi)kin  v.   Birmingham,   L.    li.  7 

C.  57.  Q.  B.  482  ;  While  v.  Coquetdale. 

{b)  2  &  3  Wm.  4.  c.  71  ;  Wright  7  Q.  B.  D.  238. 
V.  Williams,  1  M.  &   W.  77.     See         (d)  7  &  8  Vict.  c.   101  ;  R.   v. 

Ward  V.  Robins.  15  M.  &  W.  237  ;  Pickford,  1  B,  &  S.  77,  30  L.    J. 

and  Cooper  v.  Habbuck,  12  C.  B.  M.  C.  133. 


10)  LITERAL    INTERPRET ATION.  [§11 

And  as  the  same  eiiactinent  required  the  jubtices  to  hear 
the  evidence  of  the  mother  at  the  heariiii;-,  and  such 
other  evidence  as  she  might  produce,  and  if  Jier  evidence 
was  corroborated,  to  adjudge  the  man  to  be  the  putative 
father,  it  was  held  that  no  order  could  be  made  against  the 
putative  fatlier  when  the  mother  was  not  examined,  having- 
died  after  the  summons  and  before  the  hearing  {a).  [So, 
where  a  statute  declared  that  the  man  charged  by  the 
mother  of  a  bastard  child  to  be  its  father  shoukl  be  tiio 
reputed  father,  and  she  persisting  in  said  charges  iu  the 
time  of  her  extremity  of  labor,  or  afterwards  in  open  court 
upon  the  trial  of  the  person  so  charged,  the  same  should  be 
given  in  evidence  in  order  to  convict  such  person  of 
fornication,  it  was  held  that  her  declarations  during  labor 
not  corroborating  any  previous  "  charge,"  i.  e.  formal  com- 
plaint under  oath  before  a  committing  magistrate,  wore  not 
sufficient  to  convict/'] 

§  11.  Where  an  Act  prohibits  the  removal  of  a  convic- 
tion by  certiorari  to  the  Supreme  Court,  that  writ  cannot  be 
issued  (justices  having  jurisdiction)  even  fur  the  purpose  of 
bringing  up  a  case  stated  by  justices  for  the  opinion  of  the 
Court ;  although  the  object  of  such  a  prohibition  is  to  pro- 
vent  convictions  being  quashed  for  technical  defects,  but 
not  to  exclude  the  jurisdiction  of  the  Supreme  Court,  when 
consulted  on  a  substantial  question  which  the  justices  them- 
selves have  raised  (J).  An  Act  which  imposed  a  penalty  on 
any  person  who  piloted  a  ship  iu  the  Thames  before  he  was 
examined  and  admitted  a  Trinity  House  pilot  was  held  not 
to  reach  one  who  had  been  expelled  from  the  Society  after 
examination  and  admission  (c).  So,  where  an  Act  gave 
an  appeal  to  the  next  session,  and  directed  that  "  no  appeal 
should  be  proceeded  upon  "  if  it  was  found  by  the  session  that 
no  reasonable  notice  had  been  given,  but  should  be  adjourned 
to  the  next  session,  the  appellant  was  enabled  to  secure  delay 
bj  omitting  to  give  any  notice,  so  that  the  session  could  not 

(.7)  R.  V.  Armytage,  L.  R.  7.  Q.  (6)  R.  v.  Chantrcll,  L.  R.  10  Q. 

B.  7.3.  B.  587. 

^9  Comm'th   v.  Betz,  2  Woodw.  (c)  Pierce    v.    Hopper,    1     Stra. 

(Pa.)  211.  249. 


§  12]  LITERAL    INTERPRETATION.  17 

find  tliut  "  rcasoiKiblo  notice"  had  been  glven(«).  In  this 
case  the  construction  worked  an  injustice  and  enabled  a 
person  to  take  advantage  of  his  own  wrong  or  neglect ;  but 
the  language  of  the  Legislature  admitted  of  no  other  con- 
struction. Where  an  Act  disqualified  from  killing  game 
all  persons  not  possessing  land  of  a  certain  value,  except  the- 
heir  apparent  of  an  esquire  or  other  person  of  higher  degree^ 
it  was  held  that  esquires  not  possessed  of  the  requisite  prop- 
erty qualification  were  not  excepted.  However  strange  it 
might  seem  that  the  Legislature  should  refuse  them  the 
privilege  which  it  had  granted  to  their  eldest  sons  (a),  it 
was  held  to  be  safer  to  adopt  what  the  Legislature  had 
actually  said  rather  than  to  conjecture  what  they  had  meant 
to  say  (h).  So,  under  an  Act  which  qualified  for  tlie  magis- 
tracy owners  in  immediate  remainder  or  reversion  of  lands 
leased  for  two  or  three  lives,  it  was  held  that  a  remainder- 
man expectant  on  the  death  of  a  tenant  for  life  in  possession 
was  not  qualified,  as  there  was  no  lease.  There  was  perhaps 
no  good  reason  why  the  qualification  should  not  have  been 
extended  to  such  a  remainderman,  but  there  was  no  actual 
absurdity,  inconvenience,  or  injustice  in  the  omission  (d). 

§  12.  A  statute  which  empowered  a  Court  of  Requests  to 
summon  any  person  residing  in  a  town  or  navigating  from 
its  ])ort,  by  leaving  the  summons  at  his  abode,  and  to  proceed 
ex  parte  if  he  did  not  appear,  was  held  to  justify  ex  parte 
proceedings  against  a  seafaring  man  who  had  for  months 
before  the  summons,  and  during  the  whole  of  the  proceedino-, 
been  absent  bej^ond  the  seas  {e).  [Under  an  act  which 
declared  the  wives  of  any  mariners  or  others  gone  to  sea  to 
have  the  rightpand  duties  of  feme  sole  traders,  it  was  held 
immaterial  whether  the  husband  had  gone  to  sea  as  a 
mariner  or  a  passenger.*"]  So,  where  an  Act  authorized 
justices  to  hear  bastardy  cases  on  proof  that  the  summons 


(a)  9  Geo.  1.,  c.  7 ;   R.  v.  Bucks,  v.  Watts,  2  E.  «fe  B.  452,   22  L  J 
3  East,  ;J42  ;    R.  v.  Stuffordshii'c,  7  149. 

Eiist,  549.  See  R.  v.  Sussex,  4  Best         (e)  Ciilverson   v.   Meltou    12  A 

&  S.  96G ;  34  L.  J.  M.  C.  G9.  &  E.  753. 

(b)  Jones  v.  Smart,  1  T.  R.  44.  ^^  Jacobs     v.     Featherstone,     6 

(c)  Per  Ashurst,  J..  Id.  51.  Watts  &  Serg.  (Pa.)  346 

(d)  18  Geo.  2,  c.  20  ;   Woodward 


18  LITERAL    INTERPRETATION.  [§  13 

had  been  served  ut  the  hist  place  of  abode  of  the  putative 
father,  it  was  held  that  they  had  jurisdiction  in  a  case  where 
the  latter  was  abroad,  and  had  had  no  cognizance  of  the 
summons  {a).  The  Carriers  Act,  which  exempted  a  common 
■carrier  from  liability  for  the  loss  of  or  injury  to  certain 
classes  of  goods  unless  the  value  was  declared  and  insured, 
was  construed  literally  as  exempting  him  from  liability,  even 
when  the  loss  was  owning  to  his  negligence  {h).  The 
Common  Law  Procedure  Act  of  1854,  which  empowered  a 
judge  to  order  cither  party  to  a  cause  to  produce  documents, 
upon  the  application  of  the  other  party  supported  by  his 
own  afBdavit  was  held  not  to  authorize  an  order  on  the 
affidavit  of  another  person  in  its  stead  (c).  [So,  under 
a  stntute  requiring  the  deed  of  a  feme  convert  to  be  ac- 
knowledged by  her,  she  cannot  acknowledge  by  attorney  in 
fact ;"  nor  can  the  magistrate,  required  to  take  her 
acknowledgment,  take  it  through  a  sworn  interpreter/"] 
So,  the  Solicitors  Act,  23  &  24  Vict.  c.  127,  s.  28,  which 
authorises  the  imposition  of  a  charge  for  cost  on  property 
recovered  or  preserved  through  the  instrumentality  of  a 
solicitor,  was  held  not  to  authorize  such  a  charge,  where  the 
suit  was  to  prevent  or  stop  an  invasion  of  the  right  to  light ; 
for  this  was  a  suit  not  respecting  property,  but  respecting 
an  easement  merely,  or  the  mode  in  which  it  was  enjoyed  (b)  • 
nor  to  a  case  where  proceedings  had  not  gone  beyond  a 
decree  for  an  account,  and  the  parties  had  then  compromised 
without  the  knowledge  of  the  solicitor  of  the  party  who 
thereby  did  recover  property  {e). 

§  13.  [In  obedience  to  the  rule  in  question,  the  Supreme 
Court  of  the  United  States  refused  to  modify,  by  a  con- 
struction which  would    have   read  an  act  as. if   a  succeeding 

(a)  R.  V.  Damarel!.  L.  R.  3  Q.  B.      ford  v.  G.  W.  R.  Co.,  33  L.  J.   C. 
7Gi).     See  also   R.  v.  Davis.  1  Bail      P.,  307,  IG  C.  B.  N.  S.  761. 

C.  C   191,  22    L.  J.  M.  C.  143  ;   R.  *'  Dawson  v.  Shirley,  6  Blackf. 

V.  lliggins,  7  E.  &  B.  557,  25  L.  .1.  (Ind.)  531. 

M.    (J.llG.     Comp.   R.    V.    Smith,  "  Dewev   v.    Campan,  4  Wich. 

L.  R.  10  Q.  B.  GO-1.  5fi5. 

(b)  Iliiiton   V.    Dibben,    2   Q.  B.  (d)  Foxon  v.  Gascoignc,  L.    R.  9 
64G  :    Morrilt   v.    N.    E.    R.  Co.,  1  Ch.  654. 

Q.  B.  D.  302.  {e)  Piukerton  v.  Easton,  L.  R.  16 

(o)  Christoplierson     v.     Lotinga,      Eq.  440. 
15  C.  B.  N.  S.  809  ;  comp.   Kings- 


g  14]  LITERAL    INTERPKETATION.  19 

section  preceded  the  one  next  before  it,  the  language  of 
tlie  statute,  which,  read  in  the  order  of  its  chiuses,  pre- 
sented no  ambiguity,  although  it  resulted  in  what  was  termed 
by  dissenting  members  of  the  Court  an  absurdity,  viz.,  the 
giving  of  an  intestate's  estate,  not  to  his  next  of  kin,  but  to 
his  brothers  and  sisters,  instead  of  his  own  chihlren.''  By 
adopting  the  construction  which  would  have  read  the  fifth 
section  as  preceding  the  fourth,  "instead  of  adjudicating," 
says  Mr.  Justice  Swayne,  "  we  should  legislate.  .  .  Our 
function  is  to  execute  the  law,  not  to  make  it.""  And 
following  the  same  rule  of  literal  construction,  it  was  held 
that  the  phrase  "  and  have  the  casting  vote "  gave  the 
chairman  to  whom  it  applied  a  casting  vote,  in  addition  to 
his  previous  vote  as  a  member  upon  the  same  question,  i.  e., 
a  double  vote  in  case  of  a  tie."  Again,  where  an  act  provid- 
ing for  the  manner  in  which  a  person  charged  in  execution 
might  obtain  his  liberation  from  imprisonment,  required 
that  notice  should  be  served  "  on  the  creditor  or  creditors,  if 
he,  she  or  they  are  within  the  Commonwealth,"  the  court 
decided  that  notice  must  be  served  on  all  sucli  creditors, 
though  such  construction  was  admittedly  attended  with 
great  inconvenience  where  creditors  were  numerous." 
And  in  the  provision  of  a  statute  for  the  improvement  of 
swamp  lands  upon  a  petition  by  owners,  the  phrase  "  the 
greater  part  of  them  in  interest"  was  construed,  according 
to  its  plain  meaning,  as  referring  to  that  portion  having- the 
greatest  interest  in  point  of  value,  regardless  of  the  question 
of  area." 

§  14.  [So,  under  an  act  which  declared  that  all  policies 
of  life-insurance  or  annuities  taken  or  to  be  taken  out  for 
the  benefit  of,  or  bona  fide  assigned  to,  the  wife,  or  children, 
or  other  dependent  relative,  should  be  vested  in  such  bene- 
ficiary free  and  clear  from  all  claims  of  the  creditors  of  the 
insured,  it  was  held  that  the  question  of  bona  fides  could 
only  arise  in  cases  of  assignments,  and  that  the  title  of  the 

"  Poor  V.  Considine,  GWall.  458.  "People  v.    Church,   48  Barb. 

"  Ibid.  Compare,  on  the  subject      (N.  Y.)  603. 
of  trauspositiou  of  clauses,   State         '"  Putnam  v.  Lonirlcy,  11  Pick. 
V.   Turnp.  Co.,  10  Ohio  St.   308;      (Mass.)  487. 

and  see  post,  §  318.  "  Heniy  v.  Thomas,   119  Mass. 

583. 


20  LTTEUAL    INTEUPKETATION.  [§  141 

beneficiary,  wlien  existing  by  force  of  original  issue  in  tlie 
name  or  for  the  benefit  of  sucli  beneficiary  must  be  deemed 
irrespective  of  any  question  of  good  faitli/*  A  provision  in 
a  statute  that  "  all  laws  and  parts  of  laws  now  in  force, 
relative  to  the  sale  of  vinous  or  spirituous,  malt  or  brewed 
liquors,  or  any  admixture  thereof,  in  the  county  of  A., 
or  any  part  thereof,  be  and  the  same  are  hereby  repealed," 
repealed  as  to  the  county  of  A,  all  general  and  special  laws 
respecting  such  sale  in  force  in  said  county,  except  those  for 
wliich  the  act  itself  provided  ;  it  repealed,  e.  g.,  the  general 
law  prohibiting  the  sale  of  intoxicating  liquors  on  Sunday." 
An  act  authoi'izing  the  transfer  of  judgments  genei-ally 
from  one  county  to  another  for  the  purpose  of  lien,  per- 
mitted the  transfer  of  a  judgment,  for  that  purpose,  which 
had  been  opened  by  the  court  of  the  county,  in  which  it  was 
originally  entered,  and  as  to  which  an  issue  liad  been  awarded 
by  said  court,  and  defendant  let  into  a  defence/"  An  act 
providing  that  "  any  borrower  "  might  contract  for  the  pay- 
ment, in  addition  to  interest,  of  "  any  and  all  sums  assessed 
or  to  be  assessed  for  taxes  upon  the  loan  or  its  interest," 
applies  as  well  to  municipal  corporations  as  to  other  cor- 
porations and  individuals."  Under  an  act  abolishing  im- 
prisonment for  debt,  a  judgment  or  decree  for  the  payment 
of  costs  incident  to  a  suit  founded  upon  contract,  and  not 
involving  a  breach  of  trust,  e.  ^.,  the  payment  of  master's 
fees  in  an  equity  proceeding,  was  held  unenforceable  bj'^ 
attachment  against  the  person  of  the  defendant,"  An  act 
authorizing  the  filing  of  mechanics'  liens  in  certain  cases, 
against  leased  estates,  applies  whether  the  lease  be  oral  or 
written. °'  Under  an  act  providing  that  real  estate  sold  by 
the  sheriff  shall  be  held  and  enjoyed  by  the  purchaser,  his 
heirs  and  assigns,  as  fully  and  amply,  and  for  such  estate  or 
estates  as  the  defendant  had  therein,  the  omission  of  words 

*8  McCutcheon's    App.,    99    Pa.  of  the  proceedings  on  the  original 

St.  1-33.  judgment:  Ibid. 

"  Com'th  V.   Gedikoh,   101   Pa.  «'>idelity,  &c.  Co.,  v.  Scranton, 

St.  3.-)4.  102  Pa.  St.  387. 

«"  Kittanning  Ins.   Co.  v.   Scott,  "  Pi(!rce's  App.,  103  Pa.  St.   27. 

101  Pa.  St.  449  ;  though,  of  course,  Coinp.  post,  §  74.  Wood  v.  Wood, 

no  execution  could  be  issued   on  Piiill.  L.  (N.  C.)  538. 

the  transcript,  during  the  pendency  ^^  Mountain  City,   &c.  Ass'n.  v. 

Kearns,  103  Pa.  St.  403. 


f  15]  LITKRAL    INTERPRETATION.  21 

of  inheritance  in  the  sherilFs  deed  does  not  limit  the  estate 
conveyed  to  the  p;irchaser."  An  act  authorizing  a  corpora- 
tion to  assess  upon  each  share  of  stock  sucii  sums  of  monej 
as  the  stockJiolders  think  proper,  not  exceeding,  in  the  whole, 
the  original  par  value  of  the  stock,  confers  the  power  to 
make  such  assessments  upon  stock  the  full  par  value  of 
which  has  been  already  paid  by  the  subscriber."  Under  an 
act  giving  a  reward  to  "  whosoever  shall  pursue  and  appre- 
hend any  person  who  shall  have  stolen  any  mare,"  etc.,  the 
■owner  of  such  animal,  who  pursues  and  apprehends  the  thief 
that  stole  it,  is  entitled  to  the  reward."  Upon  the  same  prin- 
ciple of  construction  an  act  making  the  property  of  the  county 
•of  B.  in  the  township  of  C.  liable  to  road-taxes  in  said  town- 
ship, did  not  subject  to  such  taxation  the  real  estate  owned 
in  said  township  by  the  "  Directors  of  the  Poor,  etc.,  of  the 
county  of  B.,"  a  corporation  created  b^''  statute  for  purposes 
relating  to  the  poor  of  said  county.  "  It  certainly  does  not 
matter  that  the  money  used  for  the  purchase  of  the  land  and 
the  erection  of  the  buildings  was  raised  by  assessments  made 
by  the  County  Commissioners,  for  the  money  thus  raised  was 
intended  for  the  use  of  the  poor  district,  and  the  municipal- 
ity known  as  B.  County  had  no  interest  in  or  control  over 
it  or  the  property  it  was  used  to  purchase."*' 

§  15.  [So,  again,  power  given  by  statute  to  purchase  "  any 
property,"  gives  power  to  purchase  j'oal  and  personal  prop- 
erty." And  an  act  disposing  of  state  property,  excepting 
that  portion  "known  as  the  government  reservation,"  excep- 
ted all  lands  known  by  that  name,  whether  the  reservation 
had  any  legal  existence  or  not.*"  In  another  case,  the  court 
refused  to  read  "  no"  for  "  an"  in  the  absence  of  positive 
proof  of  error  furnished  by  the  original  enrolled  bill." 
Under  a  statute  providing  that  "  an  action  may  be  brought 
by    any    person  in  possession.  .  .  against  any   person    who 

"  MiikllctoQ   V.    Middleton,    106  "  Cumru     Township     v.     Poor 

Pa.  St.  '252.  Directors.  112  Pa   Sc.  2G4. 

65  Price's  App.,  lOG  Pa.  St.  431.  "«  DeWitt    v.    San   Francisco,   3 

Sec  to  similar  ollcct.  as  to  liability  Cal.  2^9. 

of  stockholders  under  Wis.  R.  S.  ^^  People  v.   Dana,  32  Cal.   11  ; 

;?  1709.     Sleeper    v.    Goodwin,    67  Blane  v.  I5owman,  Id.  23. 

Wis.  577.  '"'  Angcle  de  Senlmanat  v.  Sould, 

"  Butler  Co.  V.  Leibold,  107  Pa.  33  La.  An.  609. 
.St.  407. 


22  LITERAL  intkri»rp:tation.  [§  16 

claims  an  estate  .  .  tlierein  .  .  adverse  to  him,  for  tlie  \)ur- 
pose  of  determining^  such  adverse  ckiim,"  etc.,  it  was  held 
that  any  interest  claimed  adversely  to  the  plainti£F  might  be 
determined,  whether  chiimed  from  the  same  sonrce  from 
whicli  the  plaintiff  claimed,  or  from  a  different  one." 
Where  a  statute  prescribes  as  the  punishment  for  an  o£f(!nse, 
■fine  and  imprisonment,  the  court  is  bound  to  inflict  both 
upon  the  party  convicted."] 

§  IG.  [Again,  where  an  act  directed  that  "  the  nnpaid 
balance"  "of  $604,300"  on  the  sale  of  certain  raih-oads, 
"  together  with  all  interest  that  might  accrue  thereon,"  be 
appropriated  to  building  a  branch  road  between  cei'tain  ter- 
mini, and  the  nnpaid  balance  upon  the  sale  referred  to  was, 
in  point  of  fact,  $074,300,  it  was  held,  that,  the  language 
being  plain  and  nneqnivocal,  it  could  not  be  controlled  by 
any  presumed  intention  to  appropriate  the  whole  balance, 
and  that,  therefore,  a  mandamus  would  not  lie  against  the 
State  to  enforce  the  payment  of  the  difference  of  $10,000 
between  the  actual  balance  and  the  sum  named  as  such  in 
the  Act."  So,  under  an  Act  providing  that  a  demand  exhib 
ited  within  two  years  might  be  proved  within  three  years, 
although  it  was  clear  that  three  was  substituted  for  two  by 
mistake,  tlie  court  refused  to  construe  away  the  plain  nunin- 
ing  of  the  language  as  it  stood.'*  So,  again,  where  it  was 
evident  that,  in  copying  from  an  earlier  act,  the  words 
"  other  than  the  county,"  before  the  word  "  from,"  had 
been  omitted  in  the  requirement  of  fifteen  days'  notice  of 
"  a  motion  to  amerce  the  sheriff  of  any  county  from  which 
the  execution  is  issued,"  the  court  declined  to  depart  fi'om 
the  obvious  meaning  of  the  language  used,  by  interpolating 
the  omitted  words."  An  act  entitling  widows  and  oi-phans 
of  testatoi's  and  intestates  to  a  reasonable  support  and  main- 
tenance out  of  their  estates,  for  a  period  of  twelve  months 
immediately  after  the  death  of  such,  was  held  to  apply 
equally  whether  the  estates  thus  drawn   upon    were  solvent 

"  Walton  V.  Perkins,  33  Minn.  Clark,  53  Mo.  214. 

357.  •  '•»  Hicks  V.  .I.imison,  10  Jro.  App. 

""•^  U.  S.  V.  Vickcry,  1  Ilur.  &  .T.  35.     And  see  Pacific  v.  Sciferl,  79 

(Md.)    427.      S.     P. ,     Com'th     v.  Mo.  210. 

Shade,  1  VVoodw.  (Pa.)  44.  «  Woodbury   v.  Berrv,  18   Ohio. 

"  St..   Louis,   etc.    K.   K.  Co.    v.  St.  45G. 


§   17]  LITEItAL    INTEUPKKTATIUN.  23 

or  insolvent.'*  An  act  forbiJdini^  the  carrying  of  concealed 
deadly  weapons  is  violated  by  the  carrying  of  a  pistol  con- 
cealed but  for  a  moment." 

§  17.  Exceptions.— It  is  but  a  corollary  to  the  general 
rule  in  question,  that  nothing  is  to  be  added  to  or  to  be 
taken  from  a  statute,  unless  there  are  similar  adequate 
grounds  to  justify  tlie  inference  that  the  Legislature 
intended  something  which  it  omitted  to  express  (a). 
[Unless  upon  such  grounds,  courts  are  not  at  liberty  to 
engi'aft  exceptions  or  limitations  upon  words  of  general 
scope  and  comprehensiveness.'*  Where  a  statute  makes  no 
exceptions,  the  courts  can  make  none."  Thus,  where  an  act 
prohibited  absolutely  the  sale  of  liquor,  the  court  refused  to 
recognize  an  exception  in  the  case  of  liquor  shown  to  have 
been  sold  and  used  as  medicine/'  So,  an  act  making  the 
probate  of  wills  devising  real  estate  conclusive  as  to  such 
realty  unless  appealed  from  within  five  years,  operates 
against  all  persons,  whether  under  disabilities  or  not."  And 
a  statutory  limitation  to  five  years  of  the  lien  of  a  decedent's 
debts  upon  his  realty,  excepting  the  cases  of  moitgages  and 
judgments,  and  where  an  action  for  recovery  is  brought,  is 
subject  to  no  other  exceptions,  and  to  no  distinction  as  to 
the  character  of  the  debt  or  demand  ;  so  that  a  debt  due  by 
a  guardian,  at  his  death,  to  his  ward,  though,  as  a  trust, 
beyond  the  reach  of  the  general  limitation  laws,  can  be  a 
lien  on  his  real  estate,  except  in  the  cases  provided  for  by 

'^  Tlopkins  v.  Long.  9  Ga.  2G1.  some  supposed  inteut,  or  absence 

"  Briiison  v.  StateTTo  Ca.  882.  of  inteut,  which  would  prevent  the 

(t)  See  per    Tiudal,  0.     J.,    in  application   of  the  words  nclually 

Everett,  v.  Wells,  2  M.  «&  Gy- 277  ;  ustd  to   a    given   subject:"    Pitts- 

per   Lord    Wcstbury   in   Exp.    St.  burgh  v.  Kalclithalei',  114  Pa.  St. 

Sepulchre,   33  L.  J.  Ch.  375  ;  Re  547,  552. 

Cherry's  Estate,  31   L.  J.  Ch.  351.  «"  Com'th   v.  Kimball.   24  Pick. 

See,    "however.      Re      Wainright,  (Mass.)  370.     But   see   T.homasson 

Williams  V.  Evans,  and  other  cases  v.   State,    15   Ind.  449,    Wlieic,  by 

mentioned  infra,  t;^  295,  ct  scq.  construction, exceptions  were  made 

"*  U.  S.  V.  Coou'it)s,    12  Pet.  72  ;  as  to  liquor  sold  for  medicinal  or 

Tyman    v.  Walker,    35   Cal.    G34  •  -sacranienial  purposes. 
Jones  V.  Jones,  IS  ]\Ie.  308;   liar-         «'  Cochran  v.  Young.  104  Pa.  St. 

ringtnn  v.  Smith,  28  Wis.  43  ;  Tor-  333  ;  and   see  Warficid  v.  Fox,  53 

ranee  v.  McDougidd,  12  Ga.  5:6.  Id.  382  ;  Hunt   v.  Wall,  75  Id.  413; 

"Ki'lpatrick   v.  Byrne,  25  31iss.  and   see  IMcGaughey  v.  Brown,  4G 

'57.    •'  It  is  always  unsafe  lo  depart  Ark.  25,  37.  as  to  coverture,  citing 

from  the  plain  and  lileral  meaning  Pryor     v.    Ryburn,    IG   Id.     G71  ; 

«f  the  words   contained  in  legisla  Gv.yun    v.    McCauley.  32   Id.  97  ; 

tivc  enactments  out  of  tiefereuce  to  ^Morgan  v.  Hamlet,  113  U.  S.  449. 


24:  LITKUAL    IN  TKKPKETATION.  '  [§  18 

the  act,  for  only  live  yeai-s  utter  the  i^uardian's  death."  So, 
wliere  an  act  authorized  the  courts  of  comtnon  pleas  to 
chanoe  the  name,  style  and  title  of  any  corporation  within 
their  respective  jurisdictions,  ''provided,  that  no  proceeding 
for  such  purpose  shall  be  entertained  by  the  courts  until 
notice  of  such  application  is  i^iven  to  the  Auditor  General, 
and  proof  of  such  fact  is  produced  to  the  courts,"  it  was 
held  that  this  requisition  applied  to  all  corporations  whether 
of  the  class  whose  charters  were  to  be  filed  in  the  Auditor 
General's  office,  or  not/^  And  so,  again,  under  a  statute 
declaring  that  "  all  property  .  .  from  which  any  income  or 
revenue  is  derived  shall  be  subject  to  taxation,"  it  was  held 
that  water-works  from  which  a  revenue  was  derived,  though 
the  works  were  owned  by  a  municipality,  and  irrespectively 
of  the  question  whether  the  revenues  were  paid  into  the 
treasury  of  the  municipality  or  used  in  maintaning  and 
improving  the  property,  were  subject  to  county-tax."  Upon 
the  same  principle  an  act  permitting  any  wife  to  file  a  libel 
in  divorce,  includes  a  wife  who  is  under  age  ;"  and  an  act 
authorizing  the  foreclosure  of  mortgages  by  advertisement 
and  sale  under  power  contained  in  them,  admits  of  no  excep- 
tion in  favor  of  an  insane  mortgagor/^] 

§  18.  Additions.— A  case  which  has  been  omitted  is  not  to 
be  supplied  merely  because  there  seems  no  good  reason  why- 
it  should  have  been  omitted,  and  the  omission  appears  con- 
sequently to  have  been  unintentional.  Thus,  the  Divorce 
Act.  which  provided  that  any  order  made  for  the  protection 
of  the  earnings  of  a  deserted  married  woman  might  be  dis- 
charged by  the  magistrate  who  made  it,  was  held  not  to 
empower  his  successor  to  discharge  it,  though  the  njagistrate 
who  had  made  it  was  dead  {a).  [So,  where  an  act  had  con- 
ferred upon  an  oflicer  the  right  to  receive  the  proof  or 
acknowledgment  of  all  instruments  in   writing  conveying 

82  Oliver's  App.,  101  Pa.  299.  Sharp,  5  B.  &  S.  322  ;  33  L.  J.  M. 

83  Re  First  Presb.  Cliurch,  107  C.  102  ;  sec  uow  27  &  28  Vict.  c. 
Pa.  St.  543.  ^'i.     See  also  Neltleton  v.  Biirrell, 

^  Erie  Co.    v.  Com'rs  of  Water  8  Scott.  N.    R.  738  ;   Wanldyn  v. 

Works.  113  Pa.  St.  368.  Woollett,  4  0.  B.  80  ;   R.  v.  Asb- 

85  .Jones  V.  Jones,  18  Me.  308.  burton,    8  Q.    B.    871 ;    Higirs   v. 

86Enclung  v.  Simmons,  28  Wis.  Scliroe.ler,  3  C.  P.  I).  252  ;   JNew- 

272.  ton  V.  Boodle.  3  C.  B.  795  ;  Hind 

(a)  21   &  22   Vict.    c.   85  ;  Exp.  v.  Artliur.  7  D.  &  L.  252. 


§   18]  LITKIiAl,    INTKKI'KKIAIION.  25 

huul  within  tlie  county  in  which  he  had  jurisdiction,  and  a 
hitcr  statute  enlarged  his  authority  to  take  acknowledgments 
of  deeds  for  lands  in  any  part  of  the  state,  it  was  held  that, 
his  power  to  receive  proof  of  deeds  remained  restricted 
to  deeds  conveying  land  in  his  own  county.®'  Similarly,  an 
act  providing  for  testing  the  accuracy  of  the  weights  and 
measures  used  in  selling  commodities,  and  punishing  the  sell- 
ing by  unmarked  weights  and  measures,  was  of  necessity 
lield  inapplicable  to  buyers'  scales  and  measures/*  In  both 
of  tliese  cases,  it  was  admitted  that  there  was  no  apparent 
reason  for  the  discrimination.  But  the  language  of  the 
enactments  was  free  from  ambiguity  and  uncertainty,  and 
in  such  cases,  courts  cannot  supply  defects  in  the  enactment 
in  order  to  carry  out  more  fully  the  supposed  purpose  and 
intent  of  the  Legislature. *"  "  It  is  not  for  courts  of  justice, 
proprio  marte,  to  provide  for  all  the  defects  or  mischiefs  of 
imperfect  legislation.^"]  If  an  Act  requires  that  a  writ,  on 
renewal,  shall  be  sealed  with  a  seal  denoting  the  date  of 
renewal,  a  copy  of  tlie  writ  cannot  be  substituted  for  the 
original  for  this  purpose,  when  the  original  is  lost  (a).  [So, 
where  an  act  requires,  in  order  to  entitle  plaintiff  to  judg- 
ment for  want  of  an  affidavit  of  defense,  that  he  file  a  copy 
of  the  instrument  or  book  entries  upon  which  his  suit  is 
based,  nothing  short  of  an  actual  copy  will  suffice,  and  a 
reproduction  of  a  lost  bond  or  book  entry  cannot  be  filed 
with  the  effect  of  entitling  plaintiff  to  such  judgment."]  So, 
also,  it  was  held  that  the  26  &  27  Vict.  c.  29,  which  enacts 
that  answers  made  to  an  election  commission  shall  not  be 
admitted  in  evidence  in  any  proceeding  except   in   cases  of 

^  Peters  v.  Couilron,  3  Serg.  &  made  it  the  duty  of  tbe  recorder  of 

R.  (Pa.)  HO.  deeds    lo    "certify    the     recogni- 

"*  Southw.  \l.    11.  Co.   V.  Cohen,  zance "'  of   certain   olliccrs   to   the 

49  Ga.  G'37.  prothonotary  of   ihe  court  of  com- 

^^  8\vitt  V.  Luce,  27  Me.  285.  inon  jiieas,  for  the   purpo.se  of  fix- 

^  Stoky,  J.,  in  Smith  v.  Hues,  2  ing  a  lien  on  the  lands  of  the  sure- 

Sumn.  354,  355.  ties,  etc.,  a  certitication  of  a  cerli- 

{a)  15  &  IG  Vict.  c.  7(5,  and  Old.  lied  copy,  instead  of  the  original, 

8.  Judic.  Act  ;  Davis  v.  Garland,  1  was  helda  compliance  with  the  act: 

Q,  B.  250  ;  and  see  Nazer  V.  Wade,  Borliu  v.  Highberger,  10-4  Pa.   St. 

1  B.   &  S.   728,  31  L.  J.  Q.    B.  5  ;  143.J 

Evans  v.  Jones,   Id.   (51  ;  Freeman  *'  Com'th  v.  Laws,  7  W.  N.  C. 

V.  Tranch,  12  C.  B.  40G,  21  L.  J.  (Pa.)  SO  ;   Stoops  v.  Post,  15    Id. 

214.     [But   under    an    act    which  170 


26  LITEKAL    INrEKPRETATION.  [§   19 

"indictment"  for  pcrjun',  left  thetn  excluded  in  "  informa- 
tions" for  perjury  tiled  by  tiie  Attorney-general  {a). 

§  19.  When  the  Common  Law  Procedure  Act  of  1852 
abolished  the  writ  of  distringas  without  providing  for  the 
service  of  a  writ  on  lunatics  in  confinement  and  inaccessible, 
it  was  found  that  no  actions  could  be  prosecuted  against 
thom  {h).  So,  when  extra-parochial  places  were  made  rate- 
able without  either  repealing  the  enactments  which  required 
that  a  copy  should  be  affixed  on  or  near  the  doors  of  all  the 
churches  in  the  jjai'ish,  or  uiaking  any  other  pi'ovision  for 
publication,  it  was  held,  where  there  was  no  church  in  the 
extra  parochial  place,  that  a  rate  affixed  on  a  church  door 
fifty  yards  from  the  boundary  was  not  valid  for  want  of 
publication  {c).  The  4  &  5  W.  &  M.  c.  20,  which  required 
that  judgments  should  be  docketted,  enacted  that  undock- 
etted  judgments  should  not  affect  lands  as  regarded  pur- 
chasers or  mortgagees,  or  have  preference  against  heirs  or 
executors.  The  2  &  3  Vict.  c.  11,  abolished  docketting,  and 
enacted  that  no  judgment  should  have  effect  unless  i-egis- 
tered  ;  but  it  made  no  provision  for  the  protection  of  heirs 
and  executors.  Though  this  was  perhaps  an  oversight, 
•resulting  in  hardsliip  on  an  executor  who  had  paid  simple 
contract  debts  without  keeping  sufficient  assets  to  meet  an 
unregistered  judgment  of  which  he  had  no  notice,  the  court 
refused  to  supply  the  omission  [d).  These  were  all  casus 
omissi  which  the  court  could  not  reach  by  any  recognized 
canons  of  interpretation.  [For,  whilst,-  where  a  case  not 
expressly  provided  for  by  a  statute  is  yet  so  clearly  within 
its  reason  as  to  warrant  the  inference  that  the  Legislature, 
having  the  case  in  contemplation,  deemed  it  unnecessary 
expressly  to  enumerate  it,  the  court  may  extend  the  words 
of  the  statute  to  such  case,  although,  in  their  primary  sense, 
they  may  not  include  it;  yet  if  there  is  nothing  in  the  con- 
text to  give  them  a  broader  meaning, — if  the  omission  was 
because  the  contingency  was  unforeseen,  and  therefore  not 

(a)  R.  V.  Sl.vtor,  8  Q.  B.  D.  267.  {c)  R.  v.   Dyott,  9   Q.   B.  D.  47, 

(b)  Holmes  V.  Service.   15  C.  B.      51  I..  J.  104  ;    17  Geo.  2,c.  Z,  and  1 
293,    26  L.    J.   24  ;   Williarasoii  v.      Vict.  c.  45. 

Miitrgs.  28  L.  J.  Ex.  5.     See  .Judic.  (r/)  Fuller  v.    Redman,  20  Beav. 

Act;  1875,  Ord.  9  (5).  000.  29  L.  J.  334. 


§  20]  LITERAL    INTIOKPUETATION.  27 

within  tlie  contemplation  of  the  Lcgishiture,  the  court 
would  be  assuming  legislative  powers,  if  it  were  to  supply 
the  defect."] 

§  20.  AVherc  an  Act  authorized  the  apportionment  of  the 
cost  of  making  a  sewer,  without  limiting  any  time  foi"  the 
purpose,  the  court  refused  to  read  the  Act  as  limiting  the 
exercise  of  the  power  to  a  reasonable  time  {a).  The  21  J;ic. 
1,  having  provided  that  the  Statute  of  Linntations  should 
not  run  while  the  plaintiff  was  beyond  the  seas,  and  the  4 
&  5  Aime  having  made  a  similar  provision  where  the 
defendant  was  abroad,  the  3  cfe  4  W.  4,  c.  42,  enacted  that 
no  part  of  the  United  Kingdom  should  be  deemed  beyond 
the  seas  within  the  meaning  of  the  former  Act,  but  made 
no  mention  of  the  latter;  and  it  was  held  that  it  could  not 
be  stretched  to  include  it  {b).  There  may  have  been  iia 
good  reason  for  thus  limiting  the  new  enactment  to  the  Act 
of  James  ;  but  there  was  no  sufficient  ground  either  in  the 
context  or  in  the  nature  of  the  consequences  resulting  from 
the  omission,  for  concluding  that  the  Act  of  Anne  waa 
intended  to  be  included.  So  when  the  Married  Women's 
Property  Act  of  1S70  empowered  a  married  woman  to  sue, 
without  making  her  liable  to  be  sued,  it  was  held  that  no 
action  lay  against  her  (c).  The  Habitual  Criminals'  Act, 
in  enacting  that  upon  a  trial  for  receivin.g  stolen  goods,  a 
previous  conviction  for  any  offense  involving  dishonesty 
should  be  admissible  against  the  prisoner  as  evidence  of  his 
having  received  with  guilty  knowledge,  ])rovi(k'd  tlu.-t 
notice  were  <rive!i  to  him  that  the  conviction  would  be  put 
in  evidence  "  and  that  he  would  be  deemed  to  h.ave  known 
that  the  goods  were  stolen   until   he  proved    the   contr;iiT," 

'-See   Hull   v.    Hull,  2   Strobh.  7  Wheat.  115  :  McFarland  v.  Stone, 

Eq.  (S.  C.)  174.       But  sec  Maxwell  17  Vt.  17o,  and  see  po>t,  i^  327.  See 

V.   State.    40   Md.  273,  292.  298,  as  Burden  v.  Sioin.    25  Ala.  455.  that 

to  power  <•!  conrt   to  assume  and  when  a  stalntu   requires    notice  to 

supply  an  omission  in   a  long  and  be  given  and  specities  no  pari icuhir 

conipiicated  act.  lengtii  of   time,  it   is  construed   to 

(a)  Bradley  v.  Greenwich  Board,  mean  a  reasonable  time.] 

3Q.  B.  D.  3S4.   [Soil  is  said  in  Mar-  (b)  Lane  v.    Bennett.  2  C.  M.  & 

tin  V.  Robinson.  G7  Tex.  3GS.  that,  R.  70  ;   P.attersby  v.  Kirk,  2  Bing. 

where  an  act  does  not  li.K  a   time  N.  C.  584. 

after   which     administration   sliall  (c)  33   &   34  Viet.  c.   93,  s.    11  ; 

not  be  opened,  the  courts   cannot  Hancock   v.  Lablache,  3  C.  P.  D 

legislate    by   tixing    an    arbitrary  197. 
tiine.     Coiiip.  Ricard  v.  Williams, 


28  LITERAL    INTKKPKETATION.  [§  21 

omitted,  however,  to  enact  substantively  that  this  effect 
should  be  given  to  the  conviction  ;  and  it  was  held  that  the 
omission  could  not  be  supplied  («).  AVithout  such  an  emen- 
dation, the  notice  was  incorrect  and  niisleadintr ;  but  it  did  not 
lead  to  any  injustice  or  inconvenience  or  other  mischievous 
consequence.  So,  although  the  Bills  of  Sale  x\ct  of  1878 
required  that  tiie  execution  of  every  bill  of  sale  should  be 
attested  by  a  solicitor,  and  that  "  the  attestation  should 
state"  that  the  instrument  was  explained  by  the  solicitor  to 
the  grantor  before  execution,  it  was  held  that  no  explana- 
tion was  required  ;  for  the  Act  did  not  expressly  enact  that 
an  explanation  should  be  given  ;  it  required  only  that  the 
attestation  should  assert  that  it  had  been  given  {h).  [So, 
where  an  act  required  certain  wills  to  be  executed  in  the 
"  presence  "  of  two  witnesses,  it  was  held  that  they  need 
not  attest  the  execution  of  the  instrument  by  subscribing 
the  same  as  witnesses,  the  law  merely  requiring  their  pres- 
ence."] 

§  21.  "Where  a  railway  Act  provided  that  the  company, 
while  in  possession,  under  the  Act,  of  lands  liable  to  assess- 
ment to  parochial  rates,  should,  until  its  works  were  com- 
pleted and  liable  to  assessment,  be  bound  to  make  good  the 
deficiency  in  the  parochial  assessment  by  reason  of  the  land 
having  been  taken,  it  was  held,  at  first,  that  the  company 
was  bound  to  make  good  the  deficiency  in  any  one  of  the 
parishes  through  which  the  line  ran,  only  until  the  line  was 
completed  within  the  parish  (c) ;  but  this  construction  was 
rejected  by  the  Queen's  Bench  and  by  the  Exchequer 
Chamber,  partly  on  the  ground  that  in  effect  it  introduced 
the  v/ords  "  in  the  parish  "  into  the  Act ;  and  it  was  held 
that  the  company  continued  liable  to  make  good  the  defi- 


.  (rt)  R.  V.  Davis,  1  C.  C.  II.  272,  interest;   a    "credible"   one,    one 

39  L.  J.  1C5.  who  is  not  disqujiliflcd  to  testify. 

(w)  Rerealed  by  45  &  4G  Vict.  c.  An  employe  of  a  cliurilablc  insti- 

43,   s.    10;    Exp.    National    Mei'c.  tution,  u  legatee  under  a  will,  was, 

Bank,  15  Cb.  D.  43.     See  also  E.\p.  therefoie,  held  to  be  a  disinterested 

Bolland,  21  Cli.  D.  543.  and  credible!  wiUiess  to  the  execu- 

*^  Combs'  App.,  105  Pu.  St.  155.  tion  of  the  will. 

A  "disinterested  "  witness  is  there  (c)  Whitechurcli  v.  East  London 

said   to  be  one  who   has  no  legal  Co.  L.  K.  7  Ex.  248. 


§§  22,  23]  LITKRAL    IMTERPRETATION.  2&^' 

eiency  in  every  parish  until  tlie   whole  Hne  was  completed 
from  end  to  end  {a). 

§  22.  [It  has  been  seen"  that  the  plain  meaning  of  the 
language  used  in  a  statute  will  not  be  departed  from  in  its 
construction,  though  the  purpose  of  the  enactment  be 
defeated  by  following  it.  Upon  the  same  principle,  courts 
cannot  supply  legislative  defects  and  omissions,  although, 
by  reason  of  such,  the  statute  becomes,  in  w'hole  or  in  part, 
practically  unenforceable  or  inoperative.  So,  an  act  which 
authorized  municipalities,  according  to  a  procedure  therein 
described,  to  open  and  widen  streets,  and  prescribed  a  pro- 
cedure for  the  opening,  but  none  for  the  widening  of  the 
same,  was  held  to  that  extent  inoperative."] 

§  23.  Effect  to  be  given  to  Every  Word,  etc. — A  construction 
which  would  leave  without  effect  any  part  of  the  language, 
would  be  rejected,  unless  justified  on  similar  grounds  {h). 
[And  the  fact  that  a  given  construction  w^ould  make  a  word 
redundant  is  some  reason  for  its  rejection ;'"' for,  it  being 
presumed,  wherever  such  a  presumption  can  be  sustained, 
that  the  Legislature  meant  precisely  what  it  said,"  no  word 
in  it  is  to  be  treated  as  unmeaning,  if  a  construction  can  be 
legitimately  found  which  will  preserve  it  and  make  it 
effectual."*  And  the  same  rule  forbids  the  rejection,  as 
meaningless  or  superfluous  of  any  sentence  or  clause  of  a 
statute."']     Thus,  where  an  Act  plainly  gave  an  appeal  from 

{a)  R.  V.  Metrop.  Distr.  R.  Co..  Leversee    v.    Reynolds,    13   Iowa, 

L.  R.  6  Q.  B.  698  ;  Whitcclmrch  v.  310  ;  Brooks  v.  Mobile  Sch.  Coia'i-.s, 

Eiisl  Loudon  R.  Co.,  L.  R.  7  Ex.  31  Ala.  227  ;  Williams  v.  People, 

248;   reversed,  however,  7   II.  L.  17  111.  App.  374;  James  v.  Dubois, 

89.  10  N.  J.  L.  285  ;  Murray  v.  Keves, 

9^  See  ante,  §6.  35  Pa.  St.  384  ;  Com"tli  v.  Shcjpp, 

95  ChalTeo's  App.,  56  Mich.  244.  1  Woodw.  (Pa.)  123  ;  Sau  Francisco 

And   see  Pillow  v.  Gaines,  3  Lea  v.   Ilazcn,  5  Cal.   169  ;  People  v. 

(Teim.)  466.  Kin;-:,  28   Id.    265  ;   Atty.  Gen.  v. 

(^;)  See  mfra,  §§  295  et  seq.  Plank    Road    Co.,    2   Mich.    138; 

'"'Dearborn    v.     Brooklvne,    97  People  v.  Burns,  5  Id.  114  ;  Rawson 

Mass.    4G6  ;   Gates   v.    Salmon.    35  v.  Slate,   19  Conn.  292;  Hariford 

Cal.    576  ;   Parkinson  v.  State,  14  Bridge  Co.  v.  Lrnion  Ferrv,  29  Id. 

Md.  184.  210  :  Ilutchin  v.  Nihlo,  4'  Blackf. 

9'  Monlclair    v.    Ramsdale,    107  (Ind.)  148  ;  Hagenbuck  v.  Reed,  3 

U.  S.  147.  Neb.    17  ;    State    v.    Babcoek,    21 

9s  Dibblee   &   Go's  Case.  3  Ben.  Id.   599  ;  Torrevson  v.  Examiners. 

283  ;  Davis'  Case,  Id.  482  ;  U.  S.  v.  7    Nev.    19  :    Laeey   v.    Moore,    6 

Warner,  4  McLean,  463  ;  Com'th  v.  Cokiw.  (Tenn.)  348  ;   Aldridu^e  v. 

Alger,  7  Cusli.  (Mass.)  53.89  ;  Op.  Mardnflf,  32  Te.x.  204. 

of  Justices,  22  Pick.  (Mass.)  571  ;  »»  See    Hagenbuck    v.    Reeil,   3 


30  LITERAL    INTERPRKTATION.  [^  24 

one  Quarter  Sessions  to  another,  it  was  observed  that  such  a 
provision,  though  extraordinary  and  perhaps  an  oversight, 
could  not  be  eliminated  (a).  The  32  &  33  Vict.  c.  51, 
which  gives  to  certain  County  Courts  power  to  try  claims 
under  £300,  arising  out  of  "  any  agreement  in  relation  to  the 
use  or  hire  of  a  ship,"  or  in  relation  to  the  carriage 
of  goods,  with  an  appeal  to  the  Court  of  Admiralty,  and 
power  to  the  latter  Court  to  transfer  any  such  causes  to 
itself,  was  at  first  held  not  to  give  the  County  Court  juris- 
diction over  suits  for  the  breach  of  a  charter-party  notwith- 
standing the  compi'ehensive  nature  of  the  language  used  ; 
on  the  ground  that  the  literal  constructon  would  involve  the 
presumedly  unintended  anomalies  of  giving  by  mere  impli- 
cation a  large,  novel,  and  inconvenient  jurisdiction  to  the 
Court  of  Admiralty,  and  to  the  suitor  the  i-emedy  of 
proceeding  in  rem  when  his  claim  was  under  £300,  which 
he  did  not  possess  when  it  exceeded  it  (Z*).  But  this  con- 
struction did  not  prevail,  because  it  left  without  effect  the 
words  which  gave  jurisdiction  over  any  agreement  in  relation 
to  the  use  or  hire  of  a  ship  (c)  ;  and  yet  it  was  difficult 
to  believe  that  the  resulting  cons-^equenccs  were  within  the 
contemplation  of  the  Legislature  or  the  scope  of  the  enact- 
ment. [A  fortiori,  is  this  construction  imperative  when  it 
results  in  nothing  unreasonable.  Thus  the  literal  construc- 
tion of  an  act  which  submitted  the  question  of  the 
organization  of  a  new  county  to  the  vote  of  the  electors  of 
the  three  counties  from  which  the  new  one  was  to  be  taken, 
"  at  township  meetings  to  be  held  in  said  county,"  required 
the  submission  of  the  question  to  the  electors  of  the  three 
counties  residing  in  the  territory  which  was  to  compose 
the  new  county.""] 

§  24.  Insensible  Enactments Where  the  language  is  precise 

and  unambiguous,  but  at  the  same  time  incapable  of  reason- 
able meaning,  and  the  Act  is  consequently  inoperative;  a 
Court  is  not  at  liberty  to  give  the  words,  on  merely  conjec- 

Ncb.  17  ;  Murray  v.  Keyes,  35  Pa.  10  Ex.  G5. 

St.  384.  (c)  Gaudet  v.  Brown,  L.  R.  5  P. 

(«)  Il.t).  West  Riding,  IQ.B.  329.  C.  134;   The  Alina,  5  P.  D.  138, 

(}>)  Simpson  v.  Blues,  L.  R.  7  C.  49  L.  J.  40. 

P.  290  ;  Guunestad  v.  Price,  L.  R.  ">»  People  v.  Burns,  5  Mich.  114. 


R  24]  LITKUAL    INTERPRETATION.  '  •'t 

tural  grounds  (a),  a.  meaning  wliicli  does  not  belong  to  tlicin. 
[In  other  words,  where  tlic  language  of  a  statute  is'so  devoid 
of  certainty  as  to  render  it  impossible  to  ascertain  the  result 
intended  to  be  achieved,  it  cannot  be  assumed  that  it  was  in- 
tended to  give  the  court,  as  the  interpreter  of  the  statute  in 
the  last  resort,  a  power  to  control  the  event.""]  Thus,  where 
an  Act  made  warrants  of  attorney  to  confess  judgment  void 
as  against  the  assignees  of  a  banhrupt,  if  not  tiled  within 
twenty-one  days  from  execution,  or  unless  judgment  was 
signed  "or"  execution  was  "issued"  within  tlie  sanif 
period  ;  the  Court  of  Queen's  Bench  refused  to  alter  "  or" 
into  "and,"  and  "issued"  into  "levied;"  though  the  pas- 
sage was  unmeaning  as  it  stood,  and  the  proposed  alterations 
would  have  given  it  an  effect  which,  because  rational,  vcas 
probably,  but  only  conjecturally,  the  effect  intended  by  <lu; 
Leijislature  {h).  [So,  where  an  act  prohibited  the  sale  of 
liquor  "  within  three  miles  of  Mt.  Zion  Church,  in  Gaston 
County,"  and  there  were  two  churches  of  that  name,  several 
miles  apart,  in  said  county,  it  was  held  that  the  statute  must 
remain  inoperative.'"^  The  same  disposition  was  n:ade  of 
an  act  which  directed  that  appeals  from  interlocutory  judg- 
ments, etc.,  be  regulated  by  the  law  regulating  appeals 
from  final  judgments,  so  far  as  the  same  might  be  appli- 
cable thereto,  it  being  apparent  that  the  law  governing  appeals 
from  final  judgments  was  incapable  of  application  to  appeals 
from  interlocutory  determinations.'"  Similarly,  an  ordin- 
ance prohibiting  the  driving  of  any  "drove  or  droves"  of 
cattle  through  the  streets  of  a  city,  was  held  incapable  of 
construction  and  hence  inoperative,  because  of  the  vague- 
ness of  the  v*^ord  "drove "in  respect  of  the  quantity  of 
of  cattle  intended.'"  As  a  matter  of  course,  the  principle 
forbidding  courts  to  guess  at  the  meaning  of  an  act  which 
expresses  none,  is  peculiarly  applicable  to  statutes  disposing 
over  life  and  death."""] 

(a)  But  see  infra.  §§  295  et  soq.  >"^  State  v.  Partlow,  91  N.  C.  5."0. 
""   Com'lh    V.    Bank,    3    Watts         i»^  Ward  v.  Ward,  37  Tex.  3s9. 

&  ScT'^.  (Pa.)  173,  177.  And   .«ee   Hughes'  Case,    1    Bland 

(b)  Green  v.  Wood,  7  Q.  B.  178  ;      (Md.)  4G. 

see  also   Doc  v.    Carew.  2   Q.  B.  "^^  iMcConvill   v.  Jersey  City,  39 

817-  and  Mundy  v.    Rutland,  Q.  N.  J.  L.  38. 

B.  Nov.  29,    1882.     Comp.  Doe   v.  '^^  See  State   v.    Boon,  1   Tayl. 

Moilatt.  15  Q.  B.  257.  (N.  C.)  240. 


32  EXTERNAL    CIRCUMSTANCES,    ETC.  [§  25 


CHAPTER  II. 

External   Circumstances,  Context,  and  Acts  in  Pari 
Maticria, 

§  25.  Inadequacy  of  Literal  Interpretation. 
§  27.  Lord  Coke's  Rule. 
§  28.  Surrounding  Facts  and  Circumstances. 
§  29.  History  of  Enactment 

§  30.  Parliamentary  History.     Opinions  of  Legislators. 
§  31.  Motives  of  Legislators. 
^  32.  Proceedings,  etc.,  of  Committees. 
§  33.  Legislative  Journals. 
§  34.  Usage. 

§  35.  All  Parts  of  Statute  to  be  Compared. 
§  37.  Context  may  Limit  or  Expand  Meaning. 
§  38.  Context  may  Explain  Meaning. 
§  39.  Context  may  Correct  Errors. 

§  40.  Context  to  be  Consulted  1o  Avoid  Inconsistency.  Amend- 
ments, etc. 
§  41.  Limits  of  Rule  Requiring  Context  to  be  Consulted. 
§  42.  Statute  Embodying  Several  Distinct  Acts. 
§  43.  Earlier  Acts  in  Pari  Materia. 
§  45-   Acts  passed  at  Same  Session. 
§  46.   Appropriation  and  Revenue  Acts,  etc. 
§  47.  Later  Acts  in  Pari  Materia. 
§  48.  Expired  and  Repealed  Acts  in  Pari  Materia. 
§  49.  Repealed  Portions  of  Acts. 
§  50.  Repealed,  etc.,  Acts  Expressly  Referred  to. 
§  51.  Revisions — Codifications — Re-enactments. 
§  52.   Acts  upon  Similar  Subjects. 
§  53-   Purpose,  Effect,  Basis  and  Limits  of  this  Rule. 
§  54.  Acts  not  in  Pari  Materia. 
§  55.  Private  Acts  and  Special  Clauses. 
§  56.   Special  and  General  Acts  Read  Together. 
§  57.  Constitutional  Provisions  in  Pari  Materia. 

§  25.  Inadequacy  of  Literal  Interpretation. — The  foregoing 
elementary  rule  of  construction  does  not  carry  the  interpreter 
far;  for  it  is  confined  to  cases  where  the  language  is  precise 
and  capable  of  but  one  construction,  or  where  neither  the 


§  25]  EXTERNAL    CIRCUMSTANCES,    ETC.  33 

context  nor  the  consequences  to  which  tlie  litenil  interpreta- 
tion would  lead,  siiow  that  that  interpi-etation  does  not  ex- 
press the  real  intention. 

But  it  is  another  elenietitarj  rule,  that  a  thini>;  which  is- 
within  the  letter  of  a  statute  is  not  within  the  statute  unless 
it  be  also  within  the  meaning  of  the  Legislature  (a),  and  the 
words,  if  snflaciently  flexible,  must  be  construed  in  the  sense- 
which,  if  less  correct  grammaticall}',  is  more  in  harmony 
with  that  meaning  (h).  Language  is  rarel}'  so  free  from 
ambiguity  as  to  be  incapable  of  being  used  in  more  than  one 
sense ;  and  to  adhere  rigidly  to  its  literal  and  primary  mean- 
ing in  all  cases  would  be  to  miss  its  real  meaning  in  many. 
If  a  literal  meaning  had  been  given  to  the  laws  which  forbade 
a  layman  to  lay  hands  on  a  priest,  and  punished  all  who 
drew  blood  in  the  street,  the  layman  who  wounded  a  priest 
with  a  weapon  would  not  have  fallen  witliin  the  prohibition, 
and  the  surgeon  who  l)lcd  a  ])erson  in  the  street  to  save  his 
life,  would  have  been  liable  to  punishment  (c)  On  a  literal 
construction  of  his  promise,  Mahomed  IL's  sawing  the 
Venetian  governor's  body  in  two,  was  no  breach  of  his 
engagement  to  spare  his  head  ;  nor  Tamerlane's  burying  alive 
a  garrison,  a  violation  of  his  pledge  to  shed  no  blood  (d). 
On  a  literal  construction,  Paches,  after  inducing  the  defender 
of  Xotium  to  a  parley  under  a  promise  to  replace  him  safely 
in  the  citadel,  claimed  to  be  within  his  engagement  when  he 
detajned  his  foe  until  the  place  was  captured,  and  put  him 
to  death  after  having  conducted  hi)n  back  to  it  (e)  ;  and  the 
Earl  of  Argyll  fulfilled  in  the  same  spirit  his  promise  to  the 
laird  of  Glenstane,  that  if  he  would  surrender  he  would  see 

(rt)  Bac.    Ahr.    Statute.    (I.),    5.  68  ;  River  Wear  Com.  v.  Aflamson, 

[People  V.  Ins.  Co.,  15  Johns.  (N.  2  App.  743,  and  Direct  U.  S.  Cable 

Y.)358;   Freetliy  v.    Frectliy,    42  Co.  v.  Anglo-American  Telegiaph 

Barb.  (N.  Y.)   641  ;   Jersey   Co.  v.  Co.,  Id.  4i2  ;  per  Jessel.  M.li.  in 

Davison,  29  N.  J.  L.  415  ;  Morrison  Exp.  Walton.  17  Ch.  D.  746.     [See 

V.  McNeil,  6  Jones  L.  (N.  C.)  450.]  People  v.  Ins.  Co.,  15   Johns.  (X. 

(b)  See  per  Cur.  in  Ilolliugworth  Y.)  858  ;  Tonnele  v.  Hull,  4  N.  Y. 

V.  Palmer,  4  Ex.  281  ;   Waugh  v.  (4  Comst.)  140  ;  Big   Black  Creek, 

Middlcton,  8  Ex.  352,  22  L.  J.  Ex.  etc.,  Co.,    v.    Ci.m'th,   94   Pa.  St. 

Ill,  per  Pollock,  C  H. ;  Caledonian  450  ;  and  also,  post,  §§  295,  seq-] 

R.    Co.    V.  N.  Brit.  R.  Co..   L.  R.  (r)  1  Bl.  Comm.  60. 

6  App.  122,   per    Lord    Selborue;  ((/)  Vattel,  L.  N.  b.  2,  s.  273. 

per  Lord  Blackburn,  in  Edinburgh  (e)  Thucyd.      3,      34  ;      Grote's. 

Tramways  Co.  v.  Torbaiu,  3  App.  Grreece,  vol.  6,  c  30 


34  EXTERNAL    CIKCCTMSTANCES,    ETC.  [§  26 

him  safe  to  Eni^land  ;  for  he  Iiangod  him  only  after  having 
taken  him  across  the  T\vee<l  to  the  English  bank  (a). 

§  26.  The  equivocation  or  ambiguity  of  words  and  phrases, 
and  especially  such  as  are  general,  is  said  by  Lord  Bacon 
to  be  the  great  sophism  of  sophisms  {l>).  They  have 
frequently  more  than  one  equally  obvious  and  popular 
meaning  ;  words  used  in  reference  to  one  subject  or  set  of 
circumstances  may  conve}''  a  meaning  quite  different  from 
what  the  same  words  used  in  reference  to  another  set  of 
-circumstances  and  another  object  would  convey.  Many 
admit  of  indefinite  extension  or  restriction,  according  to  the 
subject  to  which  they  relate,  and  the  scope  and  object  in 
contemplation.  They  may  convey  faithfully  enough  all  that 
was  intended,  and  yet  comprise  also  much  that  was  not ;  or, 
bo  so  restricted  in  moaning  as  not  to  reach  all  the  cases  which 
fall  within  the  real  intention.  Even,  therefore,  where  there 
is  no  indistinctness  or  conflict  of  thought,  or  carelessness  of 
expression  in  a  statute,  there  is  enough  in  the  natural 
vagueness  and  elasticity  of  language  to  account  for  the 
difiiculty  so  frequently  found  in  ascertaining  the  meaning 
of  an  enactment,  with  the  degree  of  accuracy  necessary  for 
determining  whether  a  particular  case  falls  within  it.  But 
statutes  are  not  always  drawn  by  skilled  hands,  and  they  are 
always  exposed  to  the  risk  of  alterations  by  many  hands 
which  introduce  different  styles  and  consequent  difficulties 
of  interpretation.  Nothing,  it  has  been  said  by  a  great 
authority  (c),  is  so  difficult  as  to  construct  properly  an  Act 
of  Parliament ;  and  nothing  so  easy  as  to  pull  it  to  pieces.^ 

(a)  Burton's  Sc.  Grim.  Tr.  17.  all  huinan  language,  there  being 
See  other  instances  of  such  frauds  "no  word  in  the  English  language 
collected  in  Grot,  de  jureb.,  b.  2,  which  does  not  admit  of  various 
c.  16,  s.  5.  interpretations"    (cit.    Pollock,   C. 

(b)  Lord  Bacon,  Adv.  of  Learn-  B.,  in  R.  v.  Skeen,  Bell's  Cr.  Gas. 
ing,  b.  2.  at  p.    134),  some  having  lost   liie 

(c)  Per  Lord  St.  Leonards  in  definite  meaning  tliey  iiad  when 
O'i'Malicrty  v.  McDowell,  6  IL  L.  first  received  into  our  language, 
17'.j  ;  and  see  also  per  Bramwell.  some  retaining  their  primary  sense 
L.  .].,  in  2  Q.  B.  D.  552,  2  ('.  P.  wlien  used  by  purisls,  and  some 
1).  4'J6,  4  Q.  B.  D.  115.  again,    having   acquired   from   the 

'The     doubts     and     difficulties  art  or  trade  in  whicli  they  are  used, 

whi(;h   chiefly   tend  to   create  un-  a  meaning  entirely  different  from 

certainty  in  the  statute  law  are  (see  Iheir  popular  acceptation  ;  (2)  the 

Wilberforee,     Stat.     L.    pp.    2-8),  language  and  style  adopted  by  the 

said  to  be  (1)   the  imperfection  of  framers   of    statutes, —  a    "much 


§27] 


EXTERNAL    CIRCUMSTANCES,    ETC. 


§  27.  Lord  Coke's  Rule.— Tlie  literal  construction  then,  has 
in  general,  but  a  prima  facie  preference.  To  arrive  at  the 
real  meaning,  it  is  always  necessary  to  take  a  broad  general 
view  of  the  Act,  so  as  to  get  an  exact  conception  of  its  aim, 
scope  and  object.  It  is  necessary,  according  to  Lord  Coke 
(«),  to  consider,  1.  What  was  the  law  before  the  Act  was 
passed  ;  2.  What  was  the  mischief  or  defect  for  which  the 
law  had  not  provided  ;  3.  What  remedy  the  Legislature  has 
appointed  ;  and  4.  The  reason  of  the  remedy.'  According 
to  another  authority,  the  true  meaning  is  to  be  found,  not 
merely  from  the  words  of  the  Act,  but  from  the  cause  and 
necessity  of  its  being  made,  from  a  comparison  of  its  sev- 


more  fruitful  source  of  trouble  " — 
tlie  fniiuers,  however  cletirly  con- 
scious of  the  thoughts  the_y  wish  to 
express,  seldom  choosing  apt  words 
to  convey  their  meaning,  and  "  ill- 
penned"  enactments,  "putting 
judges  in  the  embarrassing  situa- 
tion of  being  bound  to  make  sense 
out  of  nonsense,  and  to  reconcile 
what  is  irreconcilable "  (Lord 
Campbell,  in  Fell  v.  Burchett,  7 
E.  &  B.  at  p.  539  ;  and  see  the 
observation  of  Mr.  Justice  Story,' 
U.  S.  V.  Basse tt,  2  Story,  389.  404  : 
"  I  believe  that  there  are  very  fevv 
acts  of  legislation  in  the  Statute 
Book,  either  of  the  Slate,  or  of  the 
National  Government,  or  of  the 
British  Parliament,  which  do  not 
fall  within  the  same  predicament, 
and  are  not  open  to  the  same 
objection  ;  or,  if  you  please,  to  the 
same  repioach.  The  truth  is,  that 
it  arises  sometimes  from  loose  and 
iniiccurate  habits  of  composition 
of  the  draftsman  ;  sometimes  from 
hasty  and  unrevised  legislation; 
but  more  frequently  from  abun- 
dant and  perhaps,  over-anxious 
caution,")  and  being  often  the 
result  of  difficulties,  not  only  in 
the  way  of  accurate  expression, 
but  besetting  the  path  of  the  legis- 
lative draftsman,  who  in  order  to 
draw  a  bill  that  will  pass,  must 
often  avoid  a  clear  expression  of 
the  object  and  intention  in  his 
own  mind,  which  would  provoke 
an  opposition  he  may  hope  to  lull 
to  sleep  by  studied  ambiguity  ;  (3) 


as  applicable  to  statute  law,  as 
distinguished  from  statutes,  (see 
ante,  i^  1,  note  1),  aud  being  the 
result  to  some  extent  of  the  two 
foregoing  elements,  the  varieties  of 
judicial  interpretation. 

(a)  Heydons  Case,  3  Rep.  76  ;  10 
Rep.  73a.  [The  points  as  stated 
by  Lord  Coke  in  this  case,  are  as 
follows  : — "  1.  What  was  the  com- 
mon law  before  the  making  of  the 
act  ? — 2.  What  was  the  mischief 
and  defect  for  which  the  common 
law  did  not  provide  ? —  3.  What 
remedy  the  Parliament  hath  re- 
solved and  appointed  to  cure  the 
disease  of  the  commonwealth  ? — 
4.  The  true  reason  of  the  remedy." 
The  modification  introduced  in  the 
text  by  omitting  the  word  "com- 
mon" seems  judicious.  The  rule 
has  been  applied  to  the  construc- 
tion of  statutes  upon  matters  pre- 
viously regulated  by  statute,  quite 
as  universally  as  to  those  which 
prescribe  a  statutory,  in  the  place 
of,  or  in  addition  to  a  previous 
comnicm  law  rule.  It  applies  with 
particular  force  to  the  construction 
of  statutes  amendatory  of  other 
statutes  :  Maus  v.  Logansport, 
&c.  R.  R.  Co..  27  111.  77^;  People 
V.  Greer,  43  Id.  213.]. 

^  See  Woods  v.  Maine,  1  Gr. 
(la.)  275 ;  Cumberland  Co.  v. 
Boyd,  113  Pa.  St.  52;  Sibley  v. 
Smith,  2  Mich.  486  ;  Winslow  v. 
Kimball.  25  Me.  493  ;  Berry  v. 
Clary,  77  Me.  482 ;  Alexander  v. 
Worthington,  5  Md.  471. 


36  K.KTKKNAL    CIliClIMSTANCIiS,    ETC.  [§  2S- 

cral  parts  and  IVom  extnuieons  circuinstances  (a)  ;  [or  by  an 
examination  of,  and  eonipai'ison  of  the  doubtful  words  with, 
the  context  of  the  hiw,  considiM-ing  its  reason  and  spirit,  and 
the  inducing  cause  of  its  enactment.^]  The  true  meaning  of 
any  passage  is  to  be  found  not  merely  in  the  words  of  that 
passage,  but  in  compai-ing  it  with  every  other  ])art  of  the 
law,  ascertaining  also  what  were  the  circumstances  with 
reference  to  which  the  words  were  used,  and  what  was  the 
object  appearing  from  those  circumstances,  which  the  Leg- 
islature had  in  view  [b),  [and  what  were  the  cause  and  occa- 
sion of  the  passage  of  the  act,"  a!id  the  purpose  intended  to 
be  accomplished  by  it,"*  in  the  liglit  of  the  circumstances  at 
the  time,  and  the  necessity  of  its  enactment."  And  where 
the  act  is  a  private  one,  the  purpose  of  the  beneficiaries  in 
asking  for  it,  as  well  as  the  object  of  the  Legislature  in 
enacting  it  may  be  looked  at  by  the  court.'  ]]ut  all  these 
rules  arc  to  be  understood  as  subject  to  the  (jualitlcation, 
tliat,  where  the  language  is  free  froui  ambiguity,  leads  to  no 
absurdity,  and  hence  needs  no  interpretation,  nothing 
beyond  it  can  be  regarded."] 

§  28.  Surrounding  Pacts  and  Circumstances, — As  regards  the 
history,  or  external  circumstances  which  led  to  the  enactment, 
the  genei'al  rule  which  is  applicable  to  the  construction  of 
all  other  documents  is  equally  applicable  to  statutes,  viz., 
tliat  the  interpreter  should  so  far  ])ut  himself  in  the  position 
of  those  whose  words  he  is  interpreting,  as  to  be  able  to  see 
what  those  words  relate  to.  Extrinsic  evidence  of  the  cir- 
cumstances or  surroundiiig  facts  under  which  a  will  or  con- 
tract was  made,  so  far  as  they  throw  light  on  the  matter  to 
which  the  document  relates,  and  of  the  condition  and  posi- 

(r/)  iV/' Turner,  L.  J.,  ill  IliUvUins  itc. ,    Co.    v.    Coni'th,    94   Pa.    St. 

V.  Galhcrcole,  6  Dc;  G.,  >L  &  G.  1,  450.    See  also  Beur's  Adm'r  v.  Bear, 

24  L.   J.   iVoS,   citing   Strudlinij  v.  33  Id.  5'3r),  527. 

Morucan,  Plow.  204  ;  and  Eyslon  v.  «  Rug-lcs  v.  Illinois,   108  U.    S. 

Stu(id.  Id.  4G5.  520  ;  Luke  v.  Caddo  Parish,  37  La. 

2  Mclntyro     v.      Ingniham,     35  An.   788;   Cniwfordville,  &c.    Co. 

Miss.   25  ;  State  v.  Judge,  12  La.  v.  Fletcher,  104  Ind.  97. 

An.  777.  "  Keith  v.  Quinney,  1  Oreg.  364. 

{fj)  See  per   Lord    Blackburn    in  ">  lluggles  v.    Illinois,  108   U.   S. 

Wear  2s'avig.  Com.  v.  Adanison,  2  520. 

App   743.    "  8  Ibid.  ;  Slate  v.  Brewster,  42  N. 

*  Tonnele   v.   Hall,  4   N.    Y.    (4  ,L  L.  125  ;  Ezekiel  v.  Dixon,  3  Ga. 

Comst.)    140  ;    Big   Black   Creek,  140  ;  and  ante,  §  4,  et  seq. 


§  29]  EXTERNAL    CIRCUMSTANCES,     ETC.  37 

tion  and  course  of  dealing  of  the  persons  who  made  it  or  are 
mentioned  in  it,  is  always  admitted  as  indispensable  for  the 
pnr[)ose  not  only  of  identifying  such  persons  and  things,  but 
also  of  explaining  the  language,  whenever  it  is  patently 
ambiguous  or  susceptible  of  various  meanings  or  shades  of 
meaning,  and  of  applying  it  sensibly  to  the  circumstances  to 
which  it  relates  («).  ["  A  statute  is  a  writing,  e(puilly  with 
a  will  or  a  contract.  And  to  a  considerable  extent  the  rules 
for  the  one  class  are  those  also  for  the  other.""  The  nieaning 
of  doubtful  language  in  a  statute,  whose  words  clearly  may 
have  ditlerent  meanings  when  employed  in  different  con- 
nections and  under  different  circumstances  or  to  effect  dif- 
ferent objects,  may  be  sought  for  by  the  court  in  every 
legitimate  way  ;"  and  in  doing  so,  resort  may  be  had  to 
extrinsic  circumstances."  Hence  evidence  of  such  extrinsic 
circumstances  may  become  admissible,  to  show  the  intent 
of  the  Legislature  ;'"'  as  to  show  that  a  certain  road  was  the 
only  road'  which  answered  the  description  of  a  road  that 
was  the  subject  of  legislation  in  a  certain  statute." 

§  29.  History  of  Enactment.  — [If  possible,  a  statute  must  be 
so  construed  as  to  make  it  effect  the  purposes  for  which  it 
Avas  intended."]  The  interpreter,  in  order  to  understand 
the  subject-matter  and  the  scope  and  object  of  the  enact- 
ment, must,  in  Coke's  words,  ascertain  what  was  the  mischief 


{(()  Wi^ram  Int.   Wills,  Piop.  5  ;  that,   in  case  of  ambiguity  iu  the 

Anstee  v.   Nelms,  1  II.  &  N.   225,  English    text    of    a    statute,    the 

26  L.  J.  5,  per  Bramwell,  B. ;  Wood  French  text  may  be  consulted   to 

V.     Priestnor,    L.    R.    3    Ex.     70  ;  explain  the  same  :  Lafourche  Par- 

Shortiede  v.  Cheek,  1  A.  &  E.  57  ;  ish   v.   Terrebonne  Parish,  34  La. 

Baumann  v.   James.  L.    R.   3  Ch.  An.    1230  ;    though,    in    case  of  a 

508;    Doe  «.  Benyon  ;  12  A.  &  E.  discrepancy  between  the  two  texts, 

431  ;  Blundell  v.  Gladstone,  3  Mc.  the  Englisii  would  have  to  prevail  : 

N.   &  «.  G'J2;  Turner   i\  Evans,  2  State  v.  Ellis,  12  La.  An.  390. 

E.   &   B.   515  :  Graves   i\    Legg,   9  '-  Smith  v.  Helmer,  7  Barb.  (N. 

Ex.  642;  Lewis  ».  G.  W.   K.   Co.,  Y.)  416. 

3  Q.  B.  D.  202,  per  Bramwell,  L.  '■'  Ibid.     In  the  same  case  it  was 

J.  :    Re    I)e   Rosaz,    2   P.    D.    66 ;  held   that  the  road   mentioned    in 

Whitfield   V.   Langdale,   1   Ch.   D.  the  statute  as   "from"   a   certain 

61  ;  Hill  V.  Crook,  L.  R.   6  IT.   L  village,   must,   under  the   circum 

2^3.     II    Jarman,  Wills,  (Rand.  &  stances,  be  held  to  include  a  por- 

Talcolt)  pp.  733  cl  seq]  lion  of  the  road  within  tlie  village 

»  Bishop,  Written  Laws,  ij  4.  limits. 

"*  People     V.     Shoonmaker,     63  '^  Lake  v.  Caddo  Parish,  37  La. 

Barb.  (N.  Y  )  49.  An.  788. 

"  Ibid.     In  Louisiana,  it  is  held. 


38  EXTERNAL  CIRCUMSTANCES,  ETC.  [§  29 

or  defect  for  wliicli  the  liiw  liad  not  provided,  that  is,  he 
must  call  to  his  aid  all  those  external  or  historical  facts 
whii;li  are  necessary  for  this  purpose,  and  which  led  to  the 
enactment  (a).  [He  ninst  refer  to  the  history  of  the  times  to 
ascertain  tlie  reason  for,  and  the  meaning  of  the  provisions 
of  a  statute,*^  and  to  the  general  state  of  opinion,  public, 
judicial  and  legislative,  at  the  time  of  the  enactment.'* 
And  the  unmistakable  evidence  of  such  contemporaneous 
circumstances  of  the  intention  of  the  Legislature  should 
govern  the  construction  of  a  statute  whose  terms  are  left 
doubtful  by  its  language,  and  whose  object  is  the  correction 
of  an  abuse."  For  these  }>urposes,  the  court,  in  interpret- 
ing a  statute,  will  take  judicial  notice  of  contemporaneous 
history  ;  "  or  it]  may  consult  contemporary  or  other  authen- 
tic works  and  writings.  In  his  celel)ratcd  judgment  in  the 
Alabama  arbitration,  Cockburn,  C.  J.,  showed,  by  a  refer- 
ence to  their  history,  tiiat  both  the  American  and  English 
Foreign  Enlistment  Acts  of  the  early  part  of  the  present 
century  were  intended,  not  to  prevent  the  sale  of  armed 
ships  to  belligerents,  but  to  prevent  American  and  English 
citizens  from  manning  privateers  against  belligerents  {h). 
The  5  Geo.  4,  c.  113,  for  the  abolition  of  the  slave  trade^ 
was  construed  to  extend  to  offenses  committed  by  British 
subjects  out  of  the  British  dominions,  that  is,  on  the  West 
Coast  of  Africa,  by  the  light  of  the  notorious  fact  that  the 
crime  against  which  the  Act  was  directed,  was  mainly,  if 
not  exclusively  committed  there  (c)  :  though  it  may,  per- 
haps, not  have  extended  to  our  subjects  in  other  parts  of  the- 
world  beyond  our  territories  [d).  An  ordinance  of  the  col- 
ony of   Ilong  Kong,    which    authorized    the   extradition  of 

(a)  Gorliam  v.  Bishop  of  Exeter,  Crensliaw,  15  Giull.  (Va.)  457. 

Rep.    by  ]\Ioorc,   p.   4G2 ;   sec  per  ''' FairchiKl  v.  CJwynne,  16  Abb^ 

Bnuiiwcll,  B  ,  in  Attorney-General  Pr.  (N.  Y.)  23.     Compare  Scott  v. 

V.  Sillem,  2  11.  &  0.  531.  Guthrie,  10  Bosw.  (N.  Y.)  408. 

15  Aldridge  v.  Williams,  3  How.  '^  i,,,ii,;  y.  Caddo   Parish,  37  La. 

9  ;  U.  S.  V.  Union  Pac.  U.   R.   Co.  An.  788. 

91  U.  S.  72  ;  Dislr.  of  Columbia  v.  (/;)  Supplement     to     the   London 

Washington   Market  Co.,    108  Id.  Gazeffe,  20  iie\)t.,  1872,  p.  4135. 

243;  State  v.  Nichols,  30  La.  An.  (c)  R.    v.    Zulucla,   1    Car.  &  K. 

Part  II.  980  ;  Lake  v.  Caddo  Par-  215. 

ish,  37  Id.  788.  (d)  PcrBiamwell  B.,  in  Santos  v. 

'"  Key  port  St.  Co.  v.  Trans.  Co.,  Illid?e,  29  L...J.  C.  P.  348,  8  C.  B. 

18  N.   J.   Eq.    13  ;  Delaplane     v.  N.  S.  801. 


§  30]  i;xtp;rnal  cikcumsiances,  etc.  39 

Ciiinese  subjects  to  the  governinent  of  China,  when  charged 
with  "  anj  crime  or  offense  against  the  hiw  of  China,"  was 
construed,  either  by  reference  to  the  circumstances  under 
which  the  treat}',  wliich  the  ordinance  enforced,  had  been 
made,  or  to  the  geographical  rchition  of  Hong  Kong  to 
China,  as  limited  to  those  crimes  which  all  nations  concur 
in  proscribing  {a).  An  Act  which  autiiorized  ''  the  Court" 
before  which  a  road  indictment  was  prefei-rcd,  to  give  costs, 
was  construed  as  authorizing  the  judge  at  Nisi  Prius  to  do 
so,  partly  on  the  ground  of  the  well-known  fact  tliat  such 
indictments  were  rarely  tried  by  the  Court  in  which  they 
were,  in  the  strict  sense  of  the  word,  "  preferred  "  (h). 
[And  so,  an  act  relating  to  civil  actions  was  held  not  to 
require  the  filing  of  complaint  and  notice  with  the  clerk 
as  the  first  step,  but  to  permit  the  service  thereof  on  the 
defendant  before  presentation  to  the  clerk  for  filing,  because 
of  the  delay  and  expense  of  travel,  which,  it  was  known, 
would  otherwise  result  to  suitors."] 

The  external  circumstances  which  may  be  thus 
referred  to,  do  not,  however,  justify  a  departure  from  every 
meaning  of  the  language  of  the  Act.  Their  function  is 
limited  to  suggesting  a  key  to  the  true  sense,  when  the 
words  are  fairly  open  to  more  than  one,  and  they  are  to  be 
borne  in  mind,  with  the  view  of  applying  the  language  to 
what  was  intended  and  of  not  extending  it  to  what  was  not 
intended  {g).  [Nor  is  reference  permissible  to  any  tradi- 
tional history  of  an  enactment,  unless  it  resulted  from 
some  known  state  of  embarrassment  under  the  former 
law.^°] 

§30,  Parliamentary  History.  Opinions  of  Legislators.— Kef  er- 
ence  has  been  occasionally  made  to  what  the  framers  of 
the  Act,  or  individual  members  of  the  Legislature  intended 
to  do  by  the  enactment,  or  understood  it  to  have  done. 
Chief  Justice  Hengham  said  that  lie  knew  better  than  coun- 
sel the  meaning  of  the  2nd  Westminster,  as  he  had  drawn 

(a)  Attorney  General  v.  Kwok  (c)  Semblo  ;  see  the  dictum  of 
Ah  Sing,  L.  R.  5  P.  G.  179,  197.  Jesscl,  M.  R.,  in  Hohiie  v.  Guy.  5 

(b)  R.   V.    Pembridge,   3     Q.    B.      Ch.  D.  905. 

901.  ^0  Barker  v.  Esty,  19  Vt.  131. 

19  Keith  V.  Quinuey,  1  Orog.  3G4. 


40  EX  TERXAL    CIKCUMSTANCES,    ETC.  [§  30 

up  that  statute  {a).     Lord  Xottiiii^liaiu  r-laiined  that  he  liad 
some  reason  to  know  the  nleani^^•  of  the  Statute  of  Frauds, 
because,  he  saul,  it  had  liad  its  first  rise  from  liim,  he  liav- 
ing  brought  it  into  the  House  of  Lords  (/>).       Lord  Kenjou 
supported  his  construction  of  the  statute  9  Anne,  c.  20,  by 
the  argument  that  so  accurate  a  hswyer  as  Mr.  Justice  Pow- 
ell,  who  had   drawn    it,    never   would   have    used    several 
words  where  one  sufficed  (c).     in  determining  the  meaning 
of  the  rubric  on  vestments  in   the  prayer-book  (enacted  by 
the  Uniformity  Act,  13  &  U  Car.  2,  c.  4),  the  Pi-ivy  Coun- 
cil, in  one  Ecclesiastical  case,  referred   to   the   introduction 
of  a  proviso  by  the  Lords  in  that  Act,  and   its   rejection  by 
the  Commons,  and  to  the  reasons   assigned  by  the  latter,  in 
the  conference  which  ensued,  for  the  rejection,  as  an  indica- 
tion of  the  intention  of  the  Legislature  {d)  ;  and  in  another, 
to  a  discussion  between  the  bishops  who  fran)ed   or  revised 
the  rubric  and  the  Presbyterian  divines  at  the  Savoy  Con- 
ference in  1G62,  as  showing  the  meaning  attached  to  it  by 
the  former  (c/j.     Lord  Westbury,  when  Chancellor,  referred 
to  a  speech  made  by  himself,  as   Attorney-General,  in   the 
House  of  Commons,  in  1860,  in  inti-oducing  the  Baidcruptcy 
Bill,  which  was  passed  into  law  in  the  following  year  ;  and 
one  of  his  reasons  in  favor  of  the  construction  which  he  put 
on  the  Act  was  that  it  tallied  best  with  the  intention   which 
the  Legislature  might  be  presumed   to   have   adopted,  as  it 
was  the  ground  on  which  application  had  been    made  to  it. 
But  he  observed,  at  the  sam(;  time,  that  he  had  endeavored, 
in  formini;-  his  opinion,  to  divest  his  mind,  as  far  as  possible, 
of  all  impressions  received  from   the   past,  and   to   consider 
the  language  of  the  Act  as  if  it  had  been   presented  to  him 
for  the  first  time  in  the  case  before  him  (_/).       [So,  Gilx^on, 
the  great  chief  justice  of  Pennsylvania,  in  a   case  which 
involved   the   question   whether  or  not   a  certain    act   was 
impliedly  repealed  by  another  ])assed  by  the  Legislature  of 
1812,  said:  "Having  been    a   mendjer  of  the  Legislature  in 

(a)  Year  book   of  33  Ed.    1,    p.  (d)  llebberl   v.  Purchas,  L.   R.  3 

xxxi.  C.  P.  ()48. 

(//)  See   Ash   V.  Abdv,  3  Swaiist.  (0  Uidsdale   v.  Clifton,  2    P.    D. 

634.                                '  322. 

((•)  R.  V.  \yallis,  r>  '1\  U.  :!70.  (/)  Pe  .^lew,  31  L.  .1.  Bey.  89 


'§  30]  EXTERNAL    CIUCUMSTANCES,    ETC.  41 

1S12,  I  know  that  no  repeal  was  in  fact  contemplated"; 
but  the  decision  to  tliat  effect  proceeds  upon  other  reasons 
as  well,  establishing  the  conclusion  reached  independently 
of  such  personal  recollection.'"]  The  reports  furnish  other 
instances  (a).  But  it  is  unquestionably  a  rule  that  what 
maj  be  called  the  parliamentary  histoi-y  of  an  enactment  is 
"  wisely  inadmissible"  to  explain  its  meaning  [h).  Its  lan- 
guage can  be  regarded  only  as  the  language  of  the  thi-ee 
states  of  the  realm,  and  the  mcnning  attached  to  it  by  its 
framers  or  by  members  of  either  house  of  parliament  cannot 
control  the  construction  of  it  {c).  ["  In  giving  construction 
to  a  statute,  we  cannot  be  controlled  by  the  views  expressed 
by  a  few  members  of  the  Legislature,  who  expressed  verbal 
opinions  on  its  passage.  Those  opinions  may  or  may  not 
liave  been  entertained  by  the  more  than  a  hundred  members 
who  gave  no  such  expression.  The  declarations  of  some, 
and  the  assumed  acquiescence  of  others  therein,  cannot  be 
adopted  as  a  true  interpretation  of  the  statute.'"'^]  Indeed, 
the  inference  to  be  drawn  from  comparing  the  language  of 
the  Act  with  the  declared  intention  of  its  framers  would  be 
tliat  the  difference  between  the  two  was  not  accidental  but 
intentional  {d).  [The  court  is,  tlierefore,  not  at  liberty  to 
recur  to  the  views  of  individual  members  of  the  Legislature, 
in  debate,  to  ascertain  the  meaning  of  a  statute,"^  or,  at  the 
most,  the  views  so  expressed  as  to  the  object  and  effect  of 
particular  provisions  of  an  act  under  discussion  are   entitled 


2^  Moyer  v.  Gross,  2  Penr.  &  W.  B.,  in  Martin  v.  Ilemminir,  10  Ex. 

(Pa.)  171,  173.  476,   24   L.  J.  E.x.  5  ;   Cameron   v. 

(rf)  Ex.    gr.    pe?'    Hale,  C.  B.,  in  Cameron,    2  M.  &  K.  289  ;   Ilem- 

Hedworth  V.  Jackson,  Hard.    318;  stead  v.  Phoenix  Gas  Co.,  3  H.  &  C. 

]\Ic'Master  v.  Lomax,    2  ^lyl.  &  K.  745,  34  L.  J.  Ex.  108 

32  ;   Mounsey   v.    Imrav,    Hi  L   J.  -'-  Per  Cur.,  in  Cumberland  Co. 

Ex.  56,  3  II.  &  C.  486  ;  Driinimond  v.  Boyd,  113  Pa.  St.  52,  57. 

V.    Drummond,    L.    K-    2   Cli.  45  ;  {d)'Pc)'  Tindal,  C.  J.,  in  Salkeld 

Hudson   V.   Tootli,  3   Q.  B.  D.  46,  v.  Johnson.  2  C.  B.  757.     And    see 

47  L.  J.  24.       [See  also   State   v.  Farley  y.  Bonham,  2  Johns.  &  H. 

Nicliolis,  30 La.  An.,  P.  H.  980.]  177,  30  L.  J.  Cli.  239. 

(/>)  See   ex.  gr.  per   Cur.  in  R.  v.  '-'•'  District  of  Columbia  v.  Wash. 

Hertford   College,  3  Q.  B.  D.  707  ;  Market   Co.,  108   U.  S.  243  ;  3   Mc 

per  Pollock,  C.  B.,  in  Atty.-Geu.  v.  Arthur  (D.  C.)  559  ;  U.  S.'v.  Union 

Sillem.    2   H.    &   C.  521,"  and   per  Pac.     R.    R.    Co..    91    U.    S.    72; 

Bramwell,  B.,  537.  Aldridgc    y.  Williams.    3  How.  9  ; 

(c)  Dean  of  York's  Case,  1  Q.  B.  Cumberland    Co.  v.  Boyd,  113  Pa. 

S4.  Pc'?- Pollock,  C.  B.,  and  Parke,  St.  52. 


42 


EXTERNAL    CIRCUMSTANCES,    ETC.  [§§  31,  32" 


to  very  little  weight."  It  follows  that  it  cannot  be  permit- 
ted to  show  the  knowledge  of  the  members  of  a  Legislature 
of  the  existence  of  a  custom  at  the  date  of  the  passage  of  an 
act,  in  order  to  argue,  from  their  silence,  an  intention  to 
sanction  it." 

§  31.  Motives  of  Legislators.— [Like  the  opinions  expressed 
by  Legislators  upon  the  passage  of  a  statute,  the  motives 
and  designs  which  actuated  them  in  supporting  it  cannot  be 
inquired  into  by  the  court,  in  order  to  make  the  validity  of 
an  act  depend  upon  the  intention  resulting  from  such  an 
inquiry  -^^  even  though,  as  in  a  quo  warranto,  the  state  be 
the  plaintiff."] 

§  32.  Proceedings,  etc.,  of  Committees. — What  took  place 
before  a  committee  cannot  be  invoked  for  putting  a  con- 
struction on  a  private  Act  (a).  [Similarly,  it  has  been  hold  in 
England  that  no  legitimate  guide  to  the  construction  of  a 
statute  can  be  found  in  the  recommendations  and  rejiorts  of 
commissions,  which  preceded  the  passage  thereof  and  upon 
which  it  was  founded,  as  the  reports  and  recommendations 
of  the  Real  Property  Commissiojiers,"*  of  the  Ecclesiastical 


2<Leese  v.  Clark,  20  Cal.  387, 
425 ;  Taylor  v.  Taylor,  10  Minn. 
107.  And  see  Keyport,  etc.  Co., 
V.  Trans.  Co.,  18  N.  .J.  Eq.  13  ; 
and  compare  Bish.,  AVrit.  Laws,  §§ 
76,  77. 

■^*  Dc'laplane  v.  Crenshaw,  15 
Gratt.  (Va.)  457. 

26  Barbier  v.  Connolly,  113  tJ.  S. 
27;  Soon  Iling  v.  Crowley.  Id. 
703  ;  Kountze  v^  Omaha.  5  Dill.  C. 
Ct.  443  ;  People  v.  Shephnrd.  36  N. 
y.  285  ;  Pa.  \i.  R.  Co.  v.  Riblet,  66 
Pa.  St.  104,  169  ;  Exp.  Jvlewmnn, 
9  Cal.  502  ;  Ilarpendin'^-  v.  IIai<>lit, 
39  Id.  1«9  ;  Stale  v.  Hays,  49  Mo. 
604;  Bradsliaw  v.  Omaha,  1  Neb. 
16. 

"  McCullock  V.  State,  11  Ind. 
424.  See,  as  to  direct  proceedings 
to  impeach  an  act  for  iiand  not 
apparent  on  its  face.  Wet  more  v. 
Law,  34  Barb.  (N.Y.)  515;  Oakland 
V.  Carpenticr,  21  Cal.  642.  In  Eng. 
land,  the  rule  seems  absolute  that 
courts  c:annol  incpiire  how  an  act 
of  Parliament  may  have  been 
passed,  how  far  the  parties  affected 


by  it  may  have  had  an  opportunity 
of  being  heard,  how  far  the  forms 
of  procedure  which  are  prescribed 
by  the  h<)u-;e-i  of  Parliament  may 
have  been  followed  :  Will)erforce. 
Stat.  Law,  p.  24,  cit.  Earl  of 
Shrewsbury  V.  Scott,  6  C.  B.  N.  S., 
at  p.  160  ;  Edinburgh  It.  R.  Co. 
V.  Wancliope,  8  CI.  Sc  Fin.,  at  pp. 
723-5  ;  that,  wliere  an  act  has  been 
improperly  obtained,  tbe  Legisla- 
ture alone  can  provide  a  rcniedy,^ 
the  courts  not  being  permitted  to 
allow  the  authority  of  the  Legisla- 
ture to  be  impeached  by  a  sugges- 
tion that  an  act  of  Parliament  has 
been  obtained  bv  fraud  :  Wilb.  pp. 
24-25,  cit.  Lee  v.  Bude,  etc  R.  R. 
Co.,  L.  \l.  6  C.  P.,  at  p.  582; 
Waterford  R.  R-  Co.  v.  Logan,  14 
Q.  B.  672,  680  ;  Stead  v.  Carey,  1 
C.  B.    at  p.  516. 

(r/)  Steele  v.  Midland  R.  Co.,  L, 
R.  1  Ch.  282. 

28  Snlkcld  V.  Johnson,  2  C.  B. 
756  ;  Farley  v.  Bonham,  2  J.  «&  H. 
177  ;  30  L.  J.  C.  239. 


§  33j  EXTERNAL    CIRCUMSTANCES,    ETC.  43 

Commissioners,"  of  the  Common  Law'"  and  chancery  com- 
missioners." And  the  rule  seems  to  be  the  same  in  this 
country,"  although  perhaps  not  followed  with  universal 
consistency.*^ 

§  33.  Legislative  Journals. — [The  journals  of  the  Legislature, 
however,  whilst  they  "  are  not  evidence  of  the  meaning  of  a 
statute,  because  this  must  be  ascertained  from  the  language 
of  the  act  itself,  and  the  facts  connected  with  the  subject  on 
which  it  is  to  operate  ""  may  nevertheless,  under  certain 
circumstances  and  for  certain  purposes,  be  consulted  by  the 
court.  They  are  not  only  the  highest  evidence  of  the  enact- 
ment of  a  law,'*  so  that  they  may  be  consulted  to  show  that 
a  part  of  a  bill  signed  by  the  executive  was  in  fact,  repealed 
before  the  date  of  such  signature  ;'*  but  in  a  case  where  the 
statute,  the  construction  of  which  was  in  question,  was  so 
worded  as  to  be  apparently  contradictory  in  some  of  its  pro- 
visions, the  Supreme  Court  of  the  United  States  interpreted 
the  same  by  reference  to  the  journals  of  Congress,  from 
which  it  appeared  that  the  peculiar  phraseology  was  the 
result  of  the  introduction  of  an  amendment,  without  due 
reference  to  the  wording  of  the  original  bill."  And  a  pro- 
vision in  a  statute  reading  that  "no  lien  reserved  on  personal 
property  sold  conditionally  and  passing  into  the  hands  of 
the  conditional  purchaser  shall  be  valid  against  attaching 
creditors  or  purchasers  without  notice,"  was  construed  as 
though  there  were  a  comma  after  "purchasers,"  such  being 
the  punctuation  in  the  original  bill  as  passed  by  the  Legisla- 
ture though  it  was  not  so  printed  in  the  copy."*    And  an  act 

29  Matter  of  Dean  of  York,  3  Q.  Pa.  St.  446,  450.      But  see  Edger 

B.  M.  V.  Co.  Comm'rs,  70  Ind.  831. 

=Jo  Martin  V.  Hemming,  24  L.  J.  ss  yo^itii^ark     B'k     v.     Com'th, 

Ex.   5;    18  Jvir.    1002;"Arding  v.  supra.  ;    and   of   tbe    time    of    its 

Bonner,  3  Jur.  N.  S.  763.  enactment  :   Gardner  v.  Collector, 

31  Ewart  V.    Williams,  3  Drew.  6  Wall.  499. 

21.  24.  ^^  Soiuliw.    B'k.    V.  Com'th,  ubi 

^■■^  See  Bank  of  Pa.  v.  Com'th,  19  upra  ;   and   see  People   v.  Starne. 

Pa.  St.  144,  156,  where  evidence  of  35  111.  121.      Compare  Slierman  v. 

the  reports    of    committees    inter  Storv,  30  Cal.  253. 

alia,  is  said  to  be  "'  not.  only  of  no  ^t  ^lake  v.  Nat.  Banks,  23  Wall, 

value,"  but  "  delusive  and  danger-  307.  321. 

ous  ;"  and  see  Bish.,  Writ.  Laws,  ^^  jNlcPhail  v.  Gerry,  55  Yt   174. 

g  77.  In  Edger  v.  Co.  Comm'rs,  70  Ind. 

23  See  post,  §  68.  331,  it  is  said  that  the  court  may 

34  Southward  B'k.  v.  Com'th,  26 


44 


EXTERNAL    CrKCL'MSTANCKS,    ETC.  [§^  ':U,  35 


approved  M;iy  3,  1S52,  wliicli  provided  tliat  it  should  take 
clToet  from  and  after  "  May  15,  next,"  was,  partly  by  reference 
to  the  les^islative  journals,  which  showed  it  to  have  been 
finally  passed  on  Apr.  28,  1852,  construed  as  taking  effect 
froniand  after  May  15,  1852.=°] 

§  Si.  Usage. — Another  class  of  external  circumstances 
which  have,  under  peculiar  circumstances,  been  sometimes 
taken  into  consideration,  in  construing  a  statute,  consists  of 
acts  done  under  it ;  for  usage  ma}'  deteruiine  the  meaning 
of  the  language,  at  all  events  when  the  meaning  is  not  free 
from  ambiguity  («). 

§  35.  All  Parts  of  Statute  to  be  Compared. —  Passing  from  the 
external  history  of  the  statute  to  its  contents,  it  is  an 
elemontai'y  rule  that  construction  is  to  be  made  of  all  the 
j)arts    together,    and    not    of    one   part    only    1)\'    itself  (h). 


consult  the  journals  of  the  two 
houses  of  the  Legislature  to  aseer- 
tain  its  will  and  intention,  where 
the  statute  to  bo  interpreted  is 
ambiijuous, —  cit.  Wood  Mowing, 
&c.  Co.  V.  Caldwell,  54  Id.  270. 

'''^  Fosdick  V.  Perrysburgh,  14 
Ohio  St.  427.  For  the  purposes  of 
construction,  and  of  ascertaining 
whether  an  act  has  been  passed 
according  to  the  forms  required  by 
the  constitution  to  give  it  validity, 
the  courts  judiciall}'  notice  the 
contents  of  the  Ijcgislative  jour- 
nals, which  need  not,  therefore,  be 
pleaded  or  given  in  evidence  : 
Moody  V.  State,  48  Ala.  115  ;  Clare 
V.  State,  5  Iowa,  509  ;  People  v. 
Mahanev.  1:5  Mich.  481  ;  Division 
of  Howard  Co.,  15  Kan.  194.  But 
see  contra  :  Grob  v.  Cushman,  45 
111.  119  ;  Coleman  v.  Dobliins,  8 
Ind.  156  ;  Madison  Co.  v.  Burford, 
93  Ind.  383;  Auditor  v.  Ilaycraft, 
14  P>usli.  (Ky. )  284.  In  State  v. 
Auditor,  41  Mo.  240,  under  an  act 
making  it  the  duty  of  the  state 
senate  to  cause  its  journals  to  be 
printed,  it  was  held  that  the 
Appendi.x  thcrelo  made  up  of 
reports  and  public  documents,  was 
a  i)art  thereof  ;  and  that  the  secre- 
tary of  the  senate  was  therefore 
entitled  to  receive  the  same  pay 
for  copying  it  for  the  press  as  for 


copying  the  record  to  the  senate's 
daily  proceedmgs. 

(ft)  See  ex.  e;r.  R.  v.  Leverson, 
L.  II.  4  Q.  B.  394,  and  other  ca.ses 
referred  to,  inf.  §§  357  et  scq. 

(b)  Co.  Litt.  381a  ;  Lincoln 
College  Case,  3  Rep.  59b.  [S.  P.  : 
Pennington  v.  Coxe,  2  Cranch.  33; 
Rice  V.  R.  R.  Co.,  1  Black,  358; 
Wilkinson  v.  Leland,  2  Pet.  627  ; 
Atkins  V.  Disintegrating  Co.,  iS 
Wall.  272  ;  U.  S.  v.  Bassett,  2 
Storv,  389  ;  Offden  v.  Strong, 
Paine,  584 ;  Strode  v.  Stafford 
.Tuslices,  1  Brock.  Marsh.  162  ; 
Com'tli  v.  Alger,  7  Cusli.  (Mass.) 
53  ;  IIoll)rook"v.  Hollmiok,  1  Pick. 
(Mass.)  248  ;  oMendon  v.  Worcester, 
10  Id.  235  ;  Com'th  v.  Cambridge, 
20  Id.  207  ;  Mason  v.  Finch,  3  111. 
223  ;  Belleville  R.  R.  Co.  v.  Greg- 
ory, 15  Id.  20;  Burke   v.  ^Monroe, 

77  Id.  610  ;  Thompson   v.   Bulson. 

78  111.  277  ;  Williams  v.  People,  17 
111.  App.  274  ;  Davy  v.  Burlington, 
&c.  R.  R.  Co.,  31  Iowa,  553 ; 
Brooks  V.  Comm'rs.  31  Ala.  227  ; 
EUeson  v.  Mobile,  &c.  R.  R.  Co.. 
36  Miss.  572  ;  Slate  v.  Mayor  of 
Patterson,  35  N.  J.  L.  197  ;  Com'th 
V.  Duane,  1  Binn"  (Pa.)  601  ; 
Com'th  V.  Conyngliam,  6()  Pa.  St. 
99;  IIoU  V.  Desiiler,  71  Id.  299; 
San  Francisco  v.  Hazen  ,  5  Cal; 
169  ;  Taylor  v.  Palmer,  31  Id.  240. 


§  35]  CONTEXT.  45^ 

Incivilo  est,  nisi  tota  lege  perspccta,  una  aliqua  particula 
ejus  j)roposita,  jndicare  vol  rcspondcre  (a).  [Ex  antecedentibiis 
et  conseqnentibus  fit  o})tiinu  interpretatio/"  A  survey  of 
tlie  entire  statute  is  almost]  always  indispensable,  even  when 
the  words  are  the  plainest*  for  the  true  meaning  of  any 
passage  is  that  which  best  harmonizes  M'itli  the  subject,  and 
with  every  other  passage  of  the  statute.  If  one  section 
of  an  Act,  for  instance,  required  that  "notice'' should  be 
"given,"  a  verbal  notice  would  probably  be  suflicient;  but 
if  a  subsequent  section  provided  that  it  should  be  "  served  " 
on  a  person,  or  "left"  with  him,  or  in  a  particular  manner 
or  place,  it  would  obviously  sliow  that  a  written  notice  was 
intended  (h).  [So,  if  one  section  of  an  act  required  that  a 
certain  notice  should  be  published  for  ten  days  in  succession, 
and  another  that  all  notices  should  be  published  daily,  Sun- 
days excepted,  the  two  sections,  read  together,  would  indi- 
cate that  the  Sundays  should  be  included  for  enumeration 
but  not  for  publication.^']  The  second  section  of  Lord  Tenter- 
den's  Prescription  Act,  2  &  3  Will.  4,  c.  71,  in  protecting 
"any  right  of  common"  from  disturbance  after  certain  peri- 
ods of  enjoyment,  uses  an  expression  wdiicli  unambiguously 
includes  all  rights  of  common,  that  is,  those  in  grosft  as  well 
as  those  appurtenant.  But  the  fifth  section,  which  in  pro- 
viding a  form  of  pleading  to  be  applicable  to  all  rights  within 

Gates  V.  Salmon,  35  Id.  576  ;  Berry  Ga.    526  ;   Wilson   v.    Briscoe.    11 

V.  Clarj',  77  Me.  483  ;  Atty.    Gen.  Ark.    44  ;  Scott  v.    State.    22   Id. 

V.  Bank,  Harr.  (Mich.)  315  :  Attv.  369  ;  Gas  Co.  v.  Wheeling,  8  W. 

Gen.  V.  Detroit,  &c.  Co.,  2  Mich.  Va.  320. 

188  ;    Reynolds  v.  Baldwin,  1  La.  {(t)  Dig.  1,  3,  34. 

An.    162  ;  Success'n  of  Hebert,   5  •"'2  lust.  173  ;  Holl  v.    Deshler, 

Id.    121;  Catlin    v.    Hull,    21    Vt.  71  Pa.  St.  299,  301.     Even  where  a 

152  ;  Ryegate  v.  Wardsboro,  30  Id.  proviso    in    an   act   is   ineffectual, 

746  ;    ]\Iaple  Lake  v.  Wright  Co.,  because  unconstitutional,  it  cannot 

12  Minn.  403  ;  St.   Peter's  Church  be   disregarded   in   the  interprela- 

V.  Scott,  Id.  395  ;   Canal  Co.  v.  R.  tion  :  CoWth  v.  Potts,   79  Pa.   St. 

R.  Co.,  4  Gill  &  J.  (Md.)  1 :  Magru-  164.     See  §  49. 

der  V.  Carroll.  4  Id.  335  ;   Alexan-  (b)  43  &  44  Yict.  c.  42  ;  2  W.  & 

der   V.    Worthingtou,    5   Id.    471  ;  M.  c.  5  ;  Mojde  v.  Jenkins,  51  L. 

Parkinson   v.    St^'ate,    14   Id.    184  ;  J.  Q.  B.   112  ;  Wilson   v.   Kightin- 

Stockett  V.  Bird,  18  Id.  484  ;  Rug-  gale,  S  Q.  B.  1034.     [A  provision 

gles   V.    Washington   Co.,    3   Mo.  merely      requiring     a     part}'      to 

496;   State   v.   Weigel,  48  Id.  29;  "  notify  "  another  requires  verbal 

Green  v.  Cheek,  5  Ind.  105  ;  Crone  notitication  only:  Vinton  v.  Build- 

V.   State.   49  Id.   538  ;   Nichols  v.  ers',  etc.,  Ass'n,  109  Ind.  351.] 

Wells,  Snecd.  (Kv.)  301  ;  Coving-  ■*!  Taylor    v.    Palmer,     31     Cal.. 

ton  v.  McNickle,"l8  B.  Mon.  (Ky.)  240. 
262  ;  Torrance  v.  McDougald,  12 


46  CONTEXT.  [,^  o(J 

the  Act,  gives  a  form  which  could,  from  its  nature,  be  a])pii- 
cablc  only  to  rights  appurtenant,  shows  that  tlic  wide  expi-es- 
siou  in  the  eai-lier  section  was  used  in  the  restricted  sense  of 
a  riglit  of  common  appurtenant  (a).  So,  in  tlie  Dower  Act, 
of  3  &  4  Will.  4,  c.  105,  the  woi-d  '•  hmd,"  which  it  defines 
as  including  manors,  messuages,  and  all  other  hereditamei.ts, 
both  corporeal  and  incorporeal,  except  such  as  are  not  liable 
to  dower,  was  held  not  to  include  copyhold  lands  ;  because 
the  sixth  section,  which  provides  that  a  widow  shall  not  be 
entitled  to  dower,  when  "the  deed"  by  which  the  land  was 
conveyed  to  her  husband  contains  a  declaration  to  that  effect, 
showed  that  only  lands  which  M'ere  transferable  by  deed 
were  within  the  contemplation  of  the  Legislature  (l). 
Where  one  section  of  an  Act  empowered  the  Board  of  Trade, 
when  it  had  "reason  to  believe"  that  a  ship  could  not  go  to 
sea  without  serious  danger  to  luiman  life,  to  detain  it  for 
survey  ;  and  another  gave  the  shipowner  a  right  to  compensa- 
tion if  it  appeared  that  there  was  not  reasonable  cause  for 
its  detention,  by  reason  of  the  condition  of  the  ship  or  the 
act  or  default  of  the  owner  ;  it  was  held  that  the  latter 
section  so  modified  the  sense  of  the  earlier  one,  that  the 
Board  of  Trade  would  be  liable  to  compensate  the  owner, 
though  it  had  reasonable  ground  for  belief  when  it  ordered 
the  detention,  if  it  appeared  from  the  evidence  at  the  trial 
that  a  person  of  ordinary  skill  would  have  thought  that  there 
was  no  reasonable  ground  for  detention  (c). 

§  36.  So,  where  one  section  of  the  25  &  26  Vict.  c.  102, 
enacted,  that  if  "any  building"  projecting  beyond  the 
general  line  of  the  street  was  pulled  down,  the  Board  of 
Works  might  order  it  to  be  set  back,  giving  compensation; 
and  the  next  enacted  that  under  certain  circumstances  "  no 
building"  should  be  erected  in  any  street,  without  the  con- 
sent of  the  Board,  beyond  the  geweral  line;  the  latter  section, 
which,  per  se,  would  have  included  alterations,  whether  on 
new  or  old,  was  confined  by  the  former  to  buildings  erected 

(a)  Shuttleworth  v.  Le  Fleminsr,  roll  v.  Jcmes,  2  Sm.  &  G.  407.  24 
19  (;.  B.  N.  S.  687.  34  L.  J.  C.  P.  L.  J.  Cli.  123.  Comp.  Doe  v. 
'^00.  Waloitou,  3  13.  &  A.  149. 

(b)  Smith  V.  Adams,  5  De  G..  M.  (o)  Thompson  v.  Farror,  8  Q.  B. 
&  G.  712,  24  L.  J.  Ch.  258  ;  Powd-  D.  372. 


§  37]  CONTEXT. 


47 


on  land  which  had  been  hitherto  vacant  {a).  Where  one 
section  of  an  Act  imposed  a  penalty  for  selling  "  as  nnadul- 
terated"  artit^les  of  food  which  are  in  fact  adulterated  ;  and 
another  declared  that  a  person  who  sold  an  article  of  food 
^'  knowini^  it  to  have  been  mixed  with  another  substance  to 
increase  its  bulk  or  weight,"  and  did  not,  in  selling  it,  declare 
the  admixture  to  the  purchaser,  should  be  deemed  to  have 
sold  an  adulterated  article,  the  iSerent  wording  of  the  two 
sections  showed  that  under  the  former  the  seller  would  bo 
liable  though  he  was  ignorant  of  the  adulteration  (b).  One 
section  of  the  Companies  Act  of  1862,  which  enacts  that 
where  a  company  is  being  wound  up  by  the  Court,  or  under 
its  supervision,  any  distress  or  execution  put  in  force  against 
the  property  of  the  company  after  the  commencement  of 
the  winding  up  "shall  be  void  to  all  intents,"  is  so  modified 
by  another  which  enacts  that  when  an  order  for  winding  up 
has  been  made,  no  action  or  other  proceeding  shall  be  pro- 
ceeded with  against  the  company,  except  with  the  leave  of 
the  Court,  that  its  true  meaning  and  effect  is  only  to  invali- 
date the  proceedings  which  it  pronounces  void,  when  the 
Court  does  not  sanction  them  {c).  The  clause  in  the  Ballot 
Act  of  1872  which  in  express  terms  requires  the  presiding 
oflficer  at  each  station  to  exclude  all  persons  except  the  clerks, 
the  agents  of  the  candidates,  and  the  constables,  on  duty, 
was  found  to  include  also  the  candidates  themselves  in  the 
exception,  since  a  subsequent  clause  provides  that  a  candidate 
may  be  present  at  any  place  at  which  his  agent  may  at- 
tend {d). 

§  37.  Context  may  Limit  or  Expand  Meaning — [Partly  by  a 
construction  of  all  the  provisions  of  an  act  together,  it  was 
ascertained  that  the  requirements  of  a  statute  relating  to 
pilots,  though  general  in  their  terms,  were  not  intended  to 
embrace  men  of  war  of  the  United  States,  but  only  to  mer- 
chant vessels,  because  the  provision   giving  the  pilot  whose 

(n)  Lord  Auckland  v.  Westmin-  B.  135  ;   and  Roberts  v.  Egerton, 

ster  Board  of  Works.  L.  R.  7  Ch.  L.  R.  9  Q.  B.  4i)4. 
597.     See  Doe  v.  Olley,  13  A.  &  E.         (c)  Re  The  London  Cotton  Co., 

481.  L.  R.  3  Eq.  53. 

(6)  23  &  24  Vict.  c.  84  ;  Fitzpat-         {d)  35  &  36  Vict.  c.  33,  s.  9,  cl. 

rick  V.  Kelly,  L.  R.    8  Q.  B.  337.  21  &  51  ;  Clemenston  v.  Mason,  L. 

See  also  Core  v.  James,  L.  R.  7  Q.  R.  10  C.  P.  309. 


48  CONTEXT.  L§  38 

fees  remained  unpaid  a  lien  upon  the  hull,  tackle,  etc.,  could 
inanifestl}'  be  applicable  only  to  the  latter  class,"  it  being 
fairly  inferred,  where  a  duty  is  prescribed  by  a  statute  and 
remedies  are  i)rovided  fur  the  breach  of  it,  and  these  reme- 
dies are  such  that  they  cannot  be  applied  to  a  particular 
subject,  that  the  subject  was  not  within  the  view  of  the 
Legislatnre  when  it  exacted  the  dnty."  So,  where  two  sec- 
tions of  an  act  dciined  the  degrees  of  murder,  and  the  third 
provided  that  "  the  degree  of  murder  shall  be  found  by  the 
jury,"  the  latter  provision  was  held  inapplicable  to  cases 
where  the  accused  pleaded  guilty."  Conversely  a  grant  of 
power  conferred  in  general  terms  in  the  first  section,  was 
limited  by  a  construction  which  read  that  section  together 
with  the  twenty-third."''  So,  an  absolute  direction,  in  one 
section,  to  set  aside  a  homestead  for  a  decedent's  widow  and 
children,  free  from  all  debts  of  the  decedent,  was  restricted 
by  an  intention  disclosed  in  succeeding  sections  to  subject 
such  iiomestead  to  debts  contracted  before  the  passage  of 
the  act."^  And  as  a  survey  of  the  whole  act  nuiy  restrict 
the  generality  of  certain  of  its  provisions,"*  so  it  may  expand 
the  narrowness  of  others,  if  the  real  intention  of  the  Legis- 
lature may  be  gathered  from  broader  ex))ressions  in  othei 
parts  of  the  statute.  Thus,  the  object  of  an  act  being  to 
restore  uniformity  of  taxation  in  counties,  tc,  and  repeal- 
ing, for  that  purpose,  all  laws  recpiiring  any  city  to  assume 
certain  li;il)ilities  imposed  by  general  laws  upon  counties,  it 
was  held  that  the  term  "cities"  must  be  held  to  include 
incorporated  towns." 

§  38.  Context  may  explain  Meaning. — [The  eifect  of  a  com- 
parison of  all  the  parts  of  a  statute  is  frequently  to  explain, 
rather  than  to  limit  or  enlarge,  an  expression  somewhere  in 

«  Avers  v.  Knox,  7  Mass.  306.  &c.  Co.  v.  Van  Auken,  9  Col.  204. 

■•sibid.,  p.  310.  «  Burke  v.  Monroe  Co.,  77  ill. 

**  Green    v.    Coni'th,    12    Allen  GIO.     And  see  Gas  Co.  v.  Wiieel- 

(Mass.)  155;  Comp.  post,  §  315.  iiiir,  8  W.  Va.  320,  where  it  is  said, 

■•^  Mapie  Lake  v.  Wright  Co.,  12  that,  the  context  showing  a  partic- 

Minn.  403.  ular   inleniion  to  ellect   a   cerlala 

*' Siniondsv.  Powers,  28  Vt.  354.  purpose,  some  degree  of  iinplica- 

*^  See  Stockelt  v.  Bird,   18  Md.  tion    may  be  called  in  to  aid    the 

484;    Covinglon    v.  McNickle,   18  intent. 
B.    Mon.    (Ky.)   202;    Klectro-.M., 


§  38]  OOKTEXT,  49 

the  statute,  which  is  open  to  several  interpretations.  Thus 
an  act  provided  for  the  appointment  by  the  governor  of  the 
8tate,  "  upon  the  passage"  of  the  act,  of  inspectors  of 
mines,  upon  the  recoinnjendation,  Ix^wever,  of  certain- 
examiners,  who  were  to  be  appointed  by  the  court  of  com- 
mon pleas  at  the  lirst  term  of  the  coni't  in  each  year,  the  act 
being  passed  after  the  lirst  term  of  tlie  court  in  tliat  year. 
In  another  preceding  section,  certain  duties  were  imposed 
upon  the  inspectors  and  penalties  inflicted  for  disobedience 
to  their  orders.  It  was  held  that  a  view  of  the  whole  act 
required  that  it  should  be  so  consti'ued  as  to  direct  the 
appointment  of  examiners  immediately,  and  in  future  years 
at  the  first  term  of  the  court."  Again,  an  act  directed  that 
corporations  might  be  dissolved  by  the  court  of  common 
pleas  of  the  "  proper  county."  It  was  held  that  the 
"  proper"  county  was  the  county,  in  which,  by  the  funda- 
mental articles  of  agreement  between  the  corporators,  upon 
which  the  decree  of  incorporation  was  based,  the  principal 
otlice  of  the  company  should  be  located  ;  because,  by  refer- 
ence to  other  portions  of  the  act,  it  appeared  that  the  same 
required  the  agreement  to  set  forth  "  the  place  within  which  " 
the  corporation  was  established, — notice  of  the  first  meeting 
''  in  some  newspaper  printed  in  the  county  in  which  said 
corporation  proposes  to  conduct  its  business," — the  deposit- 
ing of  notes  of  conlirmation  with  the  recorder  of  deeds 
"  in  said  county," — the  recording  of  certiticates  of  the 
amount  of  capital  lixed  and  paid  in  the  office  of  the  recorder 
"for  said  county," — and  the  like."  So,  too,  where  the 
language  of  one  section  of  an  act  requiring  certain  notice  of 
sheriff's  sales,  etc.,  was  such  as  to  indicate  an  intention  to 
render  sales  without  the  notice  prescribed  void,  such  con- 
struction was  negatived  by  the  next  section,  which  clearly 
imposed  only  a  penalty  on  the  officer  for  neglecting  to  com- 
ply with  the  requirement."  Where  an  act  relating  to  con- 
tested elections  of  senators  provided,  that,  in  case  there  be 
no  law  judge  of  tiie  "  district"  in  which  any  contest  should 
arise,  qualified  to  act,  a  certain  other  judge  should  be  called 

'"  Com'th  V."  Conyngham,  60  Pa.  "  Com'th  v.  Slifer,  53    Pa.  St. 

Bt.  99.    .  71. 

^'■'  Smith  V.  Kandall,  6  Cal.  47. 


50  CONTEXT.  [§§  39,  40 

in  to  preside  at  the  trial,  it  was  held,  upon  comparison  of 
the  section  in  which  this  provision  occurred  with  the  pre- 
ceding one,  which  directed  that  the  contest  should  be  deter- 
mined before  the  court  of  the  county  where  the  person 
returned  should  reside,  that  the  word  "district','  meant 
judicial,  not  senatorial,  district."  In  another  case  the  con- 
text was  held  definitely  to  fix  the  meanini^  of  the  word 
*'  attorneys  "  occurring  in  a  statute  as  "  attorneys  at  law."" 
And  again,  the  phrase  "  out  of  the  jurisdiction  of  any  par- 
ticular state,"  was  ascertained  by  comparison  of  the  context, 
from  which  it  appears  that  this  phrase  "particular  state" 
was  uniformly  used  in  contradistinction  to  "  United  States," 
to  mean  any  particular  state  of  the  Union." 

§  39.  Context  may  Correct  Errors.— [Again,  it  is  Said  that  a 
mistake  apparent  on  the  face  of  an  act  may  be  corrected  by 
other  language  in  the  act  itself  ;"  so  that,  for  instance,  the 
evident  omission  of  a  word,  in  one  section,  which  would 
affect  the  meaning,  may,  where  the  omission  is  explained  in 
another  part  of  the  statute  by  reference  to  such  section  as 
intended,  bo  supplied  according  to  such  explanation."] 

§  40.  Context  to  be  Consulted  to  Avoid  Inconsistency.  Amend- 
ments, etc.— In  all  these  instances,  the  Legislature  supplied 
in  the  context  the  key  to  the  meaning  in  which  it  used 
expressions  which  seemed  free  from  doubt ;  and  that  mean- 
ing, it  is  obvious,  was  not  [in  all  cases]  that  which  literally 
or  primarily  belonged  to  them.  [It  has  been  heretofore"  seen 
that  it  is  a  necessity  of  proper  statutory  construction,  to  give 
effect  to  every  word,  clause  and  provision  of  the  enactment. 
Possibly  the  most  important  purpose  of  the  construction  of 
all  the  parts  of  a  statute  together  and  with  reference  to  one 
another,  is  that  of  giving,  by  the  means  of  such  comparison, 
a  sensible  and  intelligent  effect  to  each,  without  permitting 
any  one  to  nullify  any  other,  and  to  harmonize  every  detailed 
provision  of  the  statute  with  the  general  purpose  or  partic- 

"  Cumberland   Co.  v.  TricUett,  "  Blanchard  v.  Sprague,  3  Sumn. 

107  Pa.  St.  118.  ''i'l'^- 

5-'  Cooper  V.  Shaver,  101  Pa.  St.  "  Brinstield  v.  Carter.  2  Ga.  143. 

547  549  See  upon   this  subiect,  also  post, 

"'  U.   "S.    V.   Furlong,  5    Wlicat.  §^  298-;302,  317,  319. 

184.  '"  Ante,  §  23 


§  40]  CONTEXT.  51 

ular  design  which  tlie  whole  is  intended  to  subserve.'*  With 
this  end  in  view,  the  rule  extends  to  acts  and  their  amend- 
ments, which,  for  this  pnrpose,  are  regarded  as  constituting 
but  one  enactment,  so  that  no  portion  of  either  is  to  be  left 
without  effect,  if  it  can  be  made  operative  without  wresting 
the  words  used  bj  the  Legislature  from  their  appropriate 
meaning,"'  and  of  two  constructions  equailj  warranted  bj 
the  language  of  an  amendment,  that  is  to  be  preferred  wliich 
best  harmonizes  the  same  with  the  general  tenor  and  spirit 
of  the  act  amended."  The  same  rule  applies  as  to  acts  and 
their  supplements,*"  and  still  more  obviously  to  codes  and 
revisions.  A  code,  or  bodj-  of  revised  laws,  should,  it  is  said, 
be  regarded  as  a  system  of  contemporaneous  acts,"  as  estab- 
lished u.no  flatu."  Its  various  sections  relating  to  the  same 
subject  should,  if  practicable,  be  construed  together,°^asoue,** 
as  one  act  or  chapter,"  or  as  continuous  sections  of  the  same 
act  ;**  and  one  chapter  is  to  be  read  with  another,  relating  to 
the  same  subject,  as  one  body  of  law,"  though  collected  from 
independent  laws  of  previous  enactment,'"  originally  passed 
at  different  times  and  re-enacted  by  a  revisory  act."  If 
possible,  the  various  portions  of  such  a  code  or  revision  must 
be  so  construed  as  to  harmonize  with  one  another."  Its 
general  system  of  legislation  upon  the  subject  matter  should 
be  taken  into  view,  and  any  particular  article  construed  in 
conformity  therewith,  unless  an  intention  to  depart  from  it 
be  clearly  shown  ;"  and  definitions  contained  in  it  are  to  be 

"  See  cases  in  note  (b)  to  i^  35.  Bryant    v.    Livermore,   20    Minn. 

«<>  HaireU  v.   Ilairell,  8  Fla.  46.  313  ;  Smith  v.  Smith,  19  Wis.  522  ; 

«i  Gritiia's  Case,  Chase  Dec.  864.  Galloijos  v.  Pino,  1  New  Mc.k.  410. 

6"-  Van  Uiper  v.  Essex  11.  R.  B'd.  ««  Mobile,    &c.    R.    R.    Co.    v. 

38   N.    J.    L.    23.     And    as    to   a  Malone,  supra, 

repealing  act  and  an  act  suspend-  "  Sniitli  v.  Smith,  supra, 

ing   its  operation,  both  passed   at  «s  Q.^Hego^  y   Pino,  supra.  • 

the  same  session  of  the  legislature,  *^  Bryant  v.  Livermore,  supra, 

being  construed  as  one  act,  so  tliat  ■"•  Mobile,    &c.    R.    R.    Co.    t. 

both  may  have  effect,  see  Brown  v.  Malone,  supra. 

Berry,  3  Dal.  365.  "  Gallegos  v.  Pino,  supra. 

«3  Ashley   v.    Harrington,   1   D.  ''^  Gibbons  v.  Brittenura,  56  Mlsa. 

Chip.  (Vt.)  348.  232. 

"    Gibbons    v.    Brittonum,    56  "  Childers  v.  Johnson,  6  La.  An. 

Miss.    232.     And    see    Com'th    v.  634.     Compare    Bank   of    La.    v. 

Goding,  3  Mete.  (Mass.)  130.  Farrar,  1  Id.  54,  where  it  is  said 

"5  Exp.  Ray,  45  Ala.  15  ;  O'Neal  that  the  civil  code  of  tlie  State  is 

V.  Robinson,  Id.  526  ;  Mobile,  &c.  not  to  be  considered  as  technically 

R.  R.  Co.   V.  Malone,  46  Id.  391  :  a  statute. 


52  '    coKTEXT.  [§^41,  42- 

coiisti'ued  with  reference  to  its  positive  enactments  in  pari 
materia.'^ 

§  41.  Limits  of  Rule  Requiring  Context  to  be  Consulted. — [1  he 
rule  coniniemiiniij  a  consideration  of  the  whole  statute,  in 
Older  to  discover  tlie  sense  in  whicli  words  are  used  in  a 
particuhir  portion  of  it,  is  subject,  however,  to  this  qualiti- 
cation,  that,  if  the  ineanin*;  of  a  word  can  be  found  in  tlie 
section  itself  in  whicii  it  is  used,  it  ought  to  be  tliere  sought 
for,  without  recourse  to  anything  beyond."  It  is  only  where 
the  meaning  of  the  word  or  phrase  cannot  be  satisfactorily' 
ascertained  from  reading  the  particular  section  ;  or  where 
the  meaning  which  such  a  limited  view  gives  to  it,  \vould 
raise  a  conflict  or  incongruity  as  compared  with  other  por- 
tions of  the  statute,  that  a  reference  to  the  latter  is  proper. 
And  where  there  are  general  sweeping  words  which  it 
would  be  difficult  to  apply  in  their  full  literal  sense,  it  is  one 
of  the  safest  guides  to  construction,  to  examine  otlier  word& 
of  like  import  in  the  same  statute,  and  if  it  is  found  that  a 
number  of  such  expressions  luive  to  be  subjected  to  limita- 
tations  or  (pialifications,  and  that  such  limitations  and  quali- 
fications are  of  the  sanie  nature,  that  forms  a  strong  argu- 
ment for  subjecting  the  expression  in  dispute  to  a  like  limi- 
tation or  qualification  :'°  the  reason  for  this  concession  being, 
that  it  is  presumed,  that  the  Legislature  used  a  word 
throughout  the  entire  act  in  the  same  sense."] 

§  42.  statute  Embodying  Several  Distinct  Acts. — It  has  been 
observed,  that  when  an  Act  embodies  several  distinct  Acts, 
one  part  throws  no  further  light  on  the  other  parts  than 
would  be  cast  upon  them  by  separate  and  distinct  enactments 
to  the  same  effect  {a).  [But  where  an  act  incorporates 
another  and  provides  that  the  two  shall  be  construed  as  one, 

'4  Egcrton  v.  Third  Municipal-  supra  ;  Pitte   v.    Shipley,  46  Cal. 

ily,  1  La.  An.  4:35  ;  Delias  v.  Riez,  154. 

2  Id.  30  ;  and  they  have  no  mean-  (a)  Per  Turner,  L.  J.,  in  Cope  v. 

ini^  beyond  :  Ibid.    See  also   Ala.  Doherty,  4  K.  &  ,J.  307,  27  \j.  J. 

Wlirehouse  Co.  v.  Lewis.  50  Ala.  600.     [And  it   has    been  said  that 

514  each  chapter  of  a  body  of  Revised 

"  Spencer  v.  Metropol.  B'd.,  L"  Statutes  is  a  statute  or  act  on  the 

R.    22   Cli.    Div.    102,   pe7'  Jessel,  subje(!t   to   which  it  relates  ;   and 

M    i{  niay,  in  i)cnal  suits,  be  rcl'erred  to 

■•^Blackwood   v.    Reg.,  L.  R.  8  as  a  statute  of  the  State:   Cleaves 

App.  Cas.  94.  V.  Jordan,  35  Me.    429.      Compare 

'•    Spencer    v.    Metrop.    Board,  ante,  §  40.] 


§  42]  '         CONTEXT.  53 

the  use,  in  one  of  the  acts  of  the  phrase  "  this  act"  will  in- 
clude not  only  the  act  itself  in  which  it  occurs,  but  earlier 
and  later  acts  which  are  so  treated  as  forming  part  of  the 
same  statute.  An  act  provided  that  "  in  the  construction  of 
this  act,"  the  word  "  parish  "  should  include  "  city."  A  later 
act,  incorporating  the  provisions  of  the  former  and  directing 
that  the  two  should  be  construed  as  one,  enacted  that  no 
person  should  be  removed  from  any  parish  in  which  he  had 
resided  for  five  years.  It  was  held,  that  by  the  combined 
•operation  of  the  two  acts,  no  person  could  be  removed  from 
a  city  in  which  he  had  resided  for  live  years."  Conversely, 
where  an  act  passed  in  1S67,  provided  that  it  and  certain 
acts  passed  in  1856  should  be  construed  together  as  one  act, 
and  the  former  declared  that  "  the  words  County  Court 
when  used  in  this  act,  or  any  future  act,  shall  include  the 
City  of  London  Court ; "  it  was  held,  that,  by  virtue  of 
these  words,  the  provisions  of  the  act  of  1S56  applied  to  the 
City  of  London  Court."  So,  again,  an  act  passed  in  1866, 
which  was  to  be  construed  as  one  with  another  passed  in 
1855,  enacted  that  "  the  provisions  this  act "  should  not 
extend  to  certain  manufacturers  ;  and  it  was  held  that  by  the 
effect  of  that  provision,  the  manufacturers  in  question  were 
exempted  from  the  operation  of  the  earlier  act.^"  But  this 
rule  does  not  extend  to  penal  starutes,  the  constructipn  of 
which,  upon  a  principle  which  will  be  hereafter  discussed," 
is  to  be  confined  to  the  more  literal  meaning  of  the  language. 
Hence,  in  such  acts,  the  term  "this  act,"  bears  its  literal 
significance,  and  refers  only  to  the  act  itself  in  which  it 
•occurs,  though  the  act  is  made  part  of  another  and  to  be 
construad  with  it.''] 

•JS  R.  V.  Forncett  St.  Mary,  12  Q.  required   by    "this    act,"  a    mis- 

B.  160.  uomor.    &c.,    in    a    voting    p;iper 

"  Blades  V.    Lav/rence.  L.   R.  9  required  by  the  later  act  was  held 

Q    B     B74.       But   see   Mather   v.  uucured  and  fatal. 

Brown,    L.    R.    1    C.    P.    D.    593,  «»  Nonis  v.  Barnes,  L.   R.  7  Q. 

where,  although  an  act  passed   in  B.  53?.     And  see  Wilb.  Stat.  Law, 

18.")7   declared   it   was   to   be   con-  pp.  264-2G6,  from  which  the  obser- 

stiued   as  one   with    another  and  vations  in  this  section  are  largely 

earlier  act,    it   was    held    that   the  borrowed, 

effect  of  the  provision  was  not  to  ^'  See  post,  §§  339,  seq. 

incorporate   in   the    later   act    the  *'  R.  v.  Trustees,  5  A.  &  E.  563; 

provisions  of  the  earlier  ;  so  that,  R.  v.  Johnson,  8  Q.  B.  102  ;   R.  v. 

though  the  latter  remedied   every  Jesse   Smith,    L.    R.    1   C.    C.    R. 

nmisnoraer,  &c.,   in  a  voting  paper  266. 


54 


ACTS    IN    PARI    MATElilA.. 


[§^» 


§  43.  Earlier  Acts  in  Pari  Materia.— WllCrc  there  are  eiirlicr 
Acts  relating  to  the  same  subject,  the  survey  must  extend 
to  them  ;  for  all  are,  for  the  purposes  of  construction,  con- 
sidered as  formini;  one  homogeneous  and  consistent  body  of 
hwv  (a),  and  each  of  them  may  explain   and  elucidate  every 


(a)  R.  V.  Loxdale,  1  Burr.  44, 
per  Loid  Miuislicld  ;  Duck  v. 
Addhigtoii.  4  T.  II.  447;  Palmer's 
Cave.  1  Leacli,  893  ;  McWilliam  v. 
Adams.  1  Macq.  II.  L.  ITG,  per 
Lurd  'rruro.  L^^.  P.  :  Alexander 
V.  Alexandria,  3  Cianel),  1  ;  Pat- 
terson V.  Winn,  11  Wheat.  380; 
The  Harriet.  1  Slorv.  251  ;  U.  S. 
V.  Collier.  3  Blalclif.  33")  ;  The 
Elizabeth,  1  Paine,  10;  Le  llov  v. 
Chabolla,  12  Abb.  U.  S.  448  ;  Phil- 
brook  V.  U  S.,  8  Ct.  of  CI.  523  ; 
Smith  V.  People.  47  N.  Y.  3.0; 
Powe-  s  V.  Shepard,  48  N.  Y.  540 ; 
Reit'ord  v.  Knight,  15  Barb.  (N. 
Y  )  G27  ;  McCarter  v.  Orph. 
A^vlum.  0  Cow.  (N.  Y.)  437; 
Pearce  v.  Alwoud,  13  Mass.  324  ; 
Gre.en  v.  Com'th,  12  Allen  (Mass.) 
155  ;  Bruce  v.  Schuyler,  9  111.  221  ; 
State  V.  Shaw,  28  Iowa,  67  ;  Scott 
V.  Scarles.  9  Miss.  590;  Eskridge 
V.  McGruder,  45  Id.  294  ;  State  v. 
Garlhwaite,  23  N.  J.  L.  143  ; 
Union  Canal  Co.  v.  O'Brien,  4 
Raw'.e  (Pa.)  358;  Neeld's  Road,  1 
Pa.  St.  353  ;  Black  v.  Trieker,  59 
Id.  13.  19  ;  Keeling's  Road,  Id. 
358;   Mt.   Iloliy  Paper  Co. '.s  App., 

99  Id.   513  ;   Koontz  v.    Howsare, 

100  Id.  506  ;  Linton's  App.,  104  Id. 
2  8-  Jacoby  v.  Shafer,  105  Id. 
610  ;  Booz's  App.,  103  Id.  592  ;  P. 
A.  &  M.  Pass.  Ry.  Co.'s  App..  1 
Penny.  (Pa.)  149  ;  Ege  v.  (Jom'tli, 
20  W.  N.  C.  (Pa.)  73  ;  Desban  v. 
Pickett,  16  La.  An.  350  ;  Isham  v. 
Iron  Co..  19  Vt.  230;  Mayes  v. 
Hanson.  12  N.  II.  284  ;  Wakefield 
V.  Phelps.  37  Id.  295  ;  Dugan  v. 
GiUings.  3  Md.  54;  3  Gill.  138; 
Canal  Co.  v.  R.  R.  Co.,  4  Gill  & 
J.  (Md.)  1  ;  Billingslea  v.  Baldwin, 
23  Md.  85;  Slate  v.  Stewart,  47 
Mo.  382  ;  State  v.  Clark,  54  Id. 
216  ;  Dodge  v.  Gridley,  10  Ohio 
St.  173  ;  .^ianuel  v.  Manuel,  13  Id. 
458  ;  McMahon  v.  II.  R.  Co.,  5 
Ind.  413;  State  v.  Springfield  Tp.. 
<5  Id.  83  ;  La  Grange  v.  Cutler,  Id. 
354 ;    Harrison   v.    Walker,   1    Ga. 


32;  Ezekiel  v.  Dixon,  3  Id.  146;. 
People  V.  Western,  3  Neb.  313  ; 
Ilendrix  v.  Reiman,  6  Id.  516  ; 
Slate  V.  Babcock,  21  Id.  599  ; 
McLaughlin  v.  Hoover,  1  Oreg. 
31  ;  Bi'yau  v.  Dennis,  4  Fla.  13  ; 
Mitchell  V.  Duncan,  7  Id.  13  ; 
Cannon  v.  Vaughan,  12  Tex.  399  ; 
Kollcnbergerv.  People,  9  Col.  233. 
The  rules' that  a  statute  is  not  to 
be  construed  to  work  public  nii.s- 
chief  uidess  plainly  required  by  its 
language  ;  that  effect  is  to  be  given 
to  the  legislative  intention,  if  as- 
certainable, though  contrary  to  the 
letter  ;  that  absolute  words  may  be 
qualified  by  reference  to  the  con- 
text, to  prior  and  .subsequent  acts 
in  pari  m;iteria,  to  the  history  (-f 
the  enactment,  and  to  contempo- 
raneous legislation  not  precisely  in 
pari  materia;  and  that  acts  passed 
at  the  same  session  arc  to  be  so 
constiued,  if  possible,  as  to  give 
effect  to  each,  apply  to,  and  may 
control  the  construction  of  a  clause 
in  an  act  expressly  rei)ealing  by 
title  the  whole  of  an  earlier  act,  so 
that,  if  upon  these  grounds  of 
interpretation,  an  intent  is  appar- 
ent to  give  the  clause  a  qualified 
or  limited  operation,  that  intent 
must  prevail  over  the  literal  and 
unqualified  .sense  of  it.  So  where 
the  title  of  an  act  "to  reorganize 
the  lo:'al  government"  of  JST.  Y. 
related  solely  to  the  political 
organizaticjn  of  a  city,  indicating 
no  intention  to  interfere  with  the 
organization  of  its  criminal  cofirts, 
and  such  appeared  from  tin;  his- 
tory of  the  enactment,  and  the 
olliC"  elements  of  construction  indi- 
cated, to  b(!  its  proper  scope,  and 
the  act  itself,  in  all  its  provisions, 
strictly  adhered  to  the  title,  a 
clause  repealing  l)y  title  another 
act,  which,  inter  alia,  proscribed  the 
organization  of  the  crimin  li  courts 
of  the  city,  w:;s  held  to  leave  Iheio 
provisions  in  full  force  :  Smith  v. 
People,  47  N.  Y.  330.] 


i  44]  ACTS  IN  PAlil  MATERIA.  55 

otlier  part  of  the  common  system  to  which  it  belongs. 
[Tiins,  not  only  may  the  entire  body  of  the  law  upon  a 
subject  be  given  the  effect  of  an  harmonions  whole,  by 
restraining,  enlarging,  or  qualifying  conflicting  words  in  any 
particular  portion  of  it,  by  reference  to  other  portions,  so 
as  to  effectuate  the  obvious  intention  of  the  law  f^  but  where 
there  are  irreconcilably  conflicting  clauses  in  the  same  stat- 
ute, a  comparison  with  other  statutes  upon  the  same  subject 
may  point  out  those  clauses  which  are  in  harmony  with  such 
legislation  as  designed  to  prevail."] 

§  44.  Illustrations. — A  bye-law  which  authorized  the  elec- 
tion of  "  any  ])erson  "  to  be  Chamberlain  of  the  City  of 
London  would  be  construed  so  as  to  harmonize,  and  not  to 
conflict,  with  an  earlier  one  which  limited  the  appointment 
to  person  possessed  of  a  certain  qualification,  and  "any 
person "  would  be  understood  to  mean  only  any  eligible 
person  (a).  Where  a  question  arose  as  to  whether  the 
Admiralty  Court  Act,  24  Vict.  c.  10.  which  gives  that  court 
jurisdiction  over  any  claim  for  "  dan)age "  done  by  any 
ship,  included  injuries  done  to  persons  by  collision  ;  one 
reason  for  deciding  in  the  negative  was  that  in  other  Acts 
in  pari  materia,  loss  of  life  and  personal  injury,  on  the  one 
liand,  and  loss  and  damage  to  ships  and  other  property,  on 
the  other,  appeared  invariably  treated  distinctly,  and  the 
word,  "damage"  was  nowhere,  in  them,  applied  to  injur- 
ies to  the  person  (h).  So  the  expression  "  possession  "  in 
the  26th  section  of  the  Keform  Act  of  1832,  which  enacts 
that  no  person  shall  be  registered  in  respect  of  his  estate  or 
interest  in  land  as  a  freeholder,  unless  he  has  been  ''  in 
actual  possession  "  of  it  for  six  months,  was  construed  in  the 
same  sense  as  in  the  Statute  of   Uses,  which  declares  that 

*^  See  Noble  v.  State,  1  Gr.   (la.)  regarded  as  of  paramount  import- 

325.  ance. 

s*  Kansas  Pac.  Ry.  Co.  v.  Wyan-  '  (a)  Tobacco  Pipe  Mnkers  «. 
dotte  Co.,  16  Kan.  587,  if  such  Woodroffc,  7  B.  &  C.  838,  over- 
construction  tends  to  secure  most  ruling  Oxford  «.  Wildgoose,  3  Lev. 
coMipietely  tlie  rights  of  all  parties  293. 

alfecteil,     and     there    is     nothing  (b)  Smith  v.  Brown,  L.  R.  6  Q. 

apparent  in  the    act    to  indicate  B.  729.     But  see  the  judgment  of 

■which   provisions  the  Legislature  Baggallay,  L.  J.,   in   The  Frauco- 

nia,  2  P.'D.  174.  et  seq. 


56  ACTS    IN    PAKI    MaTKKIA.  [§  44 

the  person  who  lias  tlie  use  of  the  land  is  to  be   cleenied  in 
lawful  "  possession  "  of  it ;  and  consequently  the  grantee  of 
a  rent-charge  by  a  conveyance  operating  under  the  latter 
statute  was  held  to  be  in  possession  of  it,  within   the  mean- 
ing of  the  Reform  Act,  from  the  date  of  the  execution  of 
the  deed  {a)  ;  though  a  grantee  under  a  common  law  con- 
veyance would  not  be  in  possession   within  the  same  Act, 
until   he   had   received   a   payment  of  the  rent-charge  {h). 
[So,  again,  the   various  statutes   in   New   York   relating  to 
and  enlarging  the  powers  of  married  women,  though  passed 
in  dilferent  years,  were   held  to  be  construable  as  one  act  ;*' 
and  where  an  act  passed  in  1817   for  the   construction  of  a 
canal  vested  the  fee  of  lands  taken  for  that  purpose  in  the 
people  of  the  state,  and  lands  were  taken  under  a  later  act, 
which  omitted  any  provision  as  to  the  title,  it  was  held  that 
it  vested  in  the  people  as  under  the  former  law.'"     Where 
an  act,  conferring  jurisdiction  of  a  certain  offense  upon  a 
police  court,  provided  that  the  fine  to  be  imposed   should 
not  exceed  $100,  nor  the  imprisonment  one  year,  it  was 
held,  upon  comparison  of  other  statutes  in  pari  materia,  that 
this  provision  was  a  limit  upon   the  punishment  by  either 
fine  or  imprisonment,  but  did  not   intend   to   authorize  the 
imposition  of  both  for  the  same  offense/"     Again,  the  gen- 
eral road  law  of  Pennsylvania  forbade  the   laying  out  of  a 
private  road  on  a  public  road,  and  required  certain  notice  to 
be  given  to  parties  through  whose  lands   the  new  road  was 
to  pass.     A  later  act  authorized  the   laying  out   of  private 
roads,  under  the  surface  of  any  land,  to  coal  mines,  provid- 
ing nothing  as  to  the  occupation  of  public  roads  or  notice  to 
parties.     It    was    held    that    this  act  was   to  be   construed 
together  with,  and  as  part  of,  the  general  road  law,  and  that, 
therefore,  the  taking  of  a  public  road  and  the  failure  to  give 
notice  were  both  fatal   defects  in  a   proceeding  under  the 
later  act,*"  as  also  the  failure,  in  the   petition,  for   the  road, 

(n)  lleelis  v.  I3rown,  18  C.  B.  N.  «'  Perkins  v.  Perkins,  63  Barb. 

S.  90,  34  I..  J.  C.  P.  88  ;  lladUeld's  (N.  Y.)  531. 
Case.  L.  II.  8  C.  P.  30G.  ^^  Reifoiil    v.    Kuigbt,   15  Barb. 

(b)  Murray  v.  Tboiuiley.  2  C.  B.  (N.  Y.)  027. 
217  ;  Oirae's  Case,  L.   K.  8  C.  P.  ^  Com'th    v.   Griffin,  105   Mass. 

281.  185. 

89  Neeld's  Pvoad,  1  Pa.  St.  353. 


§  44]  ACTS    IN    I'AUI    MAl'KUIA.  57 

to  set  forth  the  definite  points  where  the  road  was  to  begin 
and  end,  details  required  by  the  general  road  law,  but  not 
mentioned  in  the  more  recent  statute.""  So,  an  act  enlarg- 
ing the  jurisdiction  of  Justices  of  the  Peace,  and  prescribing 
no  forms  of  procedure,  must  be  construed  together  with 
earlier  acts  upon  the  same  subject  and  as  adopting  the  forms 
and  practice  prescribed  by  them  ;°'  and  in  the  construction 
of  an  act  authorizing  married  women  to  dispose  of  their 
property  by  will  "  executed  in  the  presence  of  two  wit- 
nesses," etc.,  recourse  was  had  to  the  general  wills  act  for 
the  purpose  of  ascertaining  the  meaning  of  the  word  "  execu- 
ted," and  was  accordingly  held  to  prescribe  the  formality  of 
making  a  will  as  regulated  by  that  act,  merely  with  the 
addition  that  it  should  be  done  in  the  presence  of  two  wit- 
nesses, etc."'  Similarly  the  word  "  sojourner  "  in  the  Penn- 
sylvania  act  of  1881  relating  to  physicians,  in  the  provision 
that  any  person  opening  an  office  or  appointing  any  place 
where  he  or  she  may  meet  patients,  or  receive  calls,  shall  be 
deemed  a  sojourner,  was  interpreted,  by  reference  to  earlier 
acts,  as  meaning  and  applying  to  one  who  practiced  and  had 
his  residence  in  one  county  and  who  had  an  office  and  prac- 
ticed in  another,  not  upon  special  occasion  and  at  special 
requests  only,  but  at  regular  intervals  and  in  pursuance  of 
advertisements."  Upon  a  question,  in  the  construction  of 
a  revenue  act,  whether  an  exception  of  "savings  institution" 
from  taxation  imposed  upon  "  every  company  or  association 
whatever,"  relieved  Building  Associations  from  the  pay- 
ment thereof,  it  was  decided  that  it  did  not,  partly,  at  least, 
upon  the  ground  that  a  comparison  of  other  revenue  acts 
demonstrated  that  such  societies  were  not  within  the  legis- 
lative meaning  of  the  term  "savings  institutions,"  though 
they  might  not  unnaturally  be  embraced  therein, '"  On  the 
other  hand,  by  construing  an  act  requiring  in  general  terms 
bail  absolute  m  appeals  by  defendants  from  judgments  of 
Justices  of  the  Peace  for  wages  of  manual   labor,  together 

90  Reeling's   Road,    59   Pa.    St.  ^s  Ege  v.  Com'th,  20  W.  N.  C. 

358.  (Pa.)  73. 

9'  Jacoby  v.  Sbafer,  105  Pa.  St.  »^  15ourgignon  B.  A.  v.  Com'th, 

,610.  98  Pa.  St.  54,  64. 

92  Linton's  App.,  104  Pa.  St.  228 


68  ACTS    IN     I'AKI    MATKRIA.  [§  45 

with  earlier  acts  regulating  the  matter  of  appeals  from 
judgments  of  justices,  it  was  held  that  executors  and  proba- 
bly others  sued  in  a  representative  capacity,  were  not  subject 
to  that  necessity."^  Where  certain  acts  requiring  certain 
sums  to  be  paid  into  the  state  treasury  by  a  city  gave  the 
genei'al  coui't  jurisdiction  to  enforce  the  payment,  and  an 
act  was  passed  requiring  an  additional  payment  and  thereby 
increasing  the  aggregate,  but  was  silent  as  to  the  mode  of 
enforcing  payment,  it  was  held  that  the  several  acts  must  be 
construed  together  and  that  the  remedy  given  by  the  earlier 
was  applicable  also  to  enforce  the  duty  prescribed  by  the 
latter.""  Again,  where  the  action  of  detinue  had  been  regu- 
lated by  statute,  an  act  directing  that  certain  other  issues 
should  be  governed  by  the  rules  governing  issues  in  actions 
of  detinue,  the  reference  M'as  held  to  be  to  the  action  of 
detinue  as  modified  by  statute,  not  to  the  common  law 
action;"  and  the  repeal  of  "section  six  of"  a  certain  act, 
which  had,  after  the  date  of  its  enactment  and  before  the 
passage  of  the  repealing  act  been  amended  so  that  a  new 
section  stood  in  the  place  of  the  old  section  six,  was  construed 
to  be  the  repeal  of  section  six  as  amended." 

§  45.  Acts  Passed  at  Same  Session. —  [The  rule  requiring  the 
interpretation  of  a  statute  in  the  light  of,  and  with  reference 
to,  others  in  ])ai-i  materia,  has  a  peculiarly  appro|)riate  applica- 
tion to  acts  upon  such  kindred  subjects  passed  at  the  same 
session  of  the  Legiblatui-e.*^  Indeed,  in  construing  a  statute, 
the  entire  scope  of  the  legislation  in  pari  materia  of  that 
session  should  he  drawn  into  consideration.""  Thus,  in  ISiG,. 
the  Legislature  of  Missiesippi,  by  resolution,  authorized  pay- 
ment of  a  note  due  to  the  sinking  fujid  by  a  cei'tain  party,  ''  in 
the  bonds  or  coupons  of  the  Planter's  Bank  of  Mississii)pi." 
At  the  same  session,  an  act  was  passed  authorizing  the  com- 


9=i  Koontz  V.  Howsare,  100  Pa.  325  ;   Smith  v.  People.  47  N.  T. 

St.  506.  330  ;    Slate  v.  Racklcy,  2  Blackf. 

9«  Louisville  v.  Com'th,  9  Dana  (hid.)  24!).    See  also  Stale  v.  Clark, 

(Ky.)  70.  54  Mo.  216. 

»'  Gillian  v.  Moore,  18  ]\Iis9.  130.  "^  Carver  v.  Smith,  90  lud.  222^ 

«8  Greer  v.  State,  22  Te.v.  508.  227. 

"  See  Black  v.   Scott,  2  Brock. 


§46]  '  ACTS    IN    I'A'M     MATKlilA.  59 

missioners  to  receive,  in  payment  of  debts  due  to  the  fund^ 
"bonds  of  the  State  of  Mississippi  issued  on  account  of  the 
Phmter's  Bank  and  coupons  of  interest  thereon."  It  was  held, 
that,  in  view  of  the  statute  and  the  whole  legislation  upon  the 
subject,  the  resolution  referred  to  authorized  only  the  receipt 
of  bonds  and  coupons  of  the  state  on  account  of  the  bank  in 
payment  of  the  note  and  not  of  the  bonds  and  coupons  of 
the  bank  itself."'  So  the  enactment  of  a  criminal  code 
repealing  all  other  laws  as  to  crimes,  was  construed  not  to 
repeal,  but  to  leave  standing,  side  by  side  with  it,  a  license 
law  with  penalties,  passed  at  the  same  session,  the  code  con- 
taining no  provisions  touching  the  subject  of  license."* 
And  two  acts  passed  on  the  same  day,  relative  to  the  same 
subject  matter,  are  to  be  read  together,  as  though  they  were 
parts  of  the  same  enactment.'"  Hence,  where  a  statute 
declared  all  lands  heldby  a  seminary  free  from  all  taxation 
whatever,  and  another  statute  of  the  same  date  enacted  that 
the  land  on  which  any  seminary  is  erected,  to  the  extent  of 
live  acres,  held  severally  and  individually,  shall  be  exempt 
from  taxation,  it  was  held,  construing  both  acts  together, 
that  land  on  which  a  seminary  was  erected,  owned  by  the 
seminary,  though  exceeding  five  acres  was  exempt,  whilst, 
if  not  owned  by  the  seminary,  only  five  acres  would  be 
exempt."*  Again,  where  an  act  specifically  appropriated  to 
the  payment  of  certain  outstanding  bonds  a  sum  of  money 
granted  to  the  state  by  congress,  and  a  subsequent  act  of 
the  same  Legishiture,  out  of  the  same  fund,  made  for  a 
different  purpose  an  ai)propriation  so  large  that  it  would 
have  interfered  with  the  payment  of  the  bonds,  it  was  held 
that  the  last  appropriation  should  take  effect  out  of  what 
was  left  of  the  fund  after  payment  of  the  bonds."* 

§  46.  Appropriation  and  Revenue  Acts,  eto. — [The  provisions 
of  appropriation  acts,  as  well  as  those  of  any  other  class  of 
statutes,  are  to  be  construed  in  connection  with  previous  laws 

Joi  State  V.  Dickinson,  20  Miss.  'o^  Naz.  Lit.  &c.  Inst.  v.  Com'th, 

579.  14B.  Mon.  (Ky.)26G. 

"2  Cain  V.  State.  20  Tex.  355.  '"^  Stale   v.   Bishop,  41  Mo.  16. 

>03  People   V.   Jaclison,    30  Cal.  See  Riggs  v.  Brewer,  G4  Ala.  283, 

.427  ;  Chandler  v.  Lee,  1  Idaho,  N.  post,  §  215. 
S.  349. 


•60  ACTS    IX    I'AKI    M\li;UIA.  [§"^7 

relating  to  the  same  subject  matter ;""  and  the  priiicii)le 
extends  also  to  rules  of  courts.  Thus,  where  Ilule  11  per- 
mitted a  plaintiff  to  take  judi^nient  for  such  part  of  his  claim 
as  the  defendant  might,  in  his  alhdavit  of  defence,  admit, 
or  fail  to  deny, — Rule  9  having  provided  that  plaintiff  should 
be  entitled  to  judgment  for  want  of  an  affidavit  of  defence, 
"  at  any  time  after  return  day  and  ten  day's  service  of  the 
writ,''  it  was  held  that  the  two  rules  were  in  pari  materia, 
parts  of  a  general  system  of  practice,  and  to  be  construed 
together;  and  that,  therefore,  the  plaintift''s  right  to  judg- 
ment, even  for  part  uf  his  claim,  under  Rule  11,  could  not 
accrue  until  exj)iration  of  the  time  allowed  defendant  for 
tiling  an  athdavit  of  defence  under  Rule  9,  his  right  to  the 
whole  of  which  could  not  be  regarded  as  waived  by  the  filing 
of  a  partial  defence  at  an  earlier  date  ;'"  and  the  rule  is  said 
to  be  particularly  applicable  to  the  revenue  laws,  as  forming 
■one  system,  though  composed  of  independent  enactmejits.'""] 

§  47.  Later  Acts  in  Pari  Materia. —  Not  only  is  the  later  Act 
construed  by  the  light  of  the  earlier,  but  it  sometimes  [where 
the  meaning  which  the  Legislature  attached  to  the  woi'ds  of 
the  earlier  enactment  can  be  gathered  from  a  later  statute 
in  pari  niateria,'""]  furnishes  a  legislative  interpretation  of  the 
earlier.'"  Thus  chapter  23  of  Magna  Cliarta,  which  provides 
that  "  all  weirs  shall  be  put  down  through  Thames  and 
Medway,  and  through  all  England,  except  by  the  sea-coast," 
was  held  to  applj^  only  to  navigable  rivers,  because  the  25 
Ed.  3  and  other  subsequent  statutes  spoke  of  it  as  having 
been  passed  to  prevent  obstruction  to  navigation  {a).  To 
determine  the  meaning  of  the  word  "broker,"  in  the  6 
Anne,  c.  16,  the  Babble  xVct  (6  Geo.  1,  c.  18),  passed  twelve 
years  later,  was  referred  to,  where  the  same  term  was  used 
(J).     In  section  299  of  the  Merchant  Shipping  Act  of  1854, 

lo"  Converse  v.  U.  S.,  21  How.  it'y  Co.  v.  Nelms,  65  Ga.  67,  as  to 

463-     And  see  Riggs  v.  Pfistcr,  21  effect  of    resolution  of   1879  upon 

Ala.  469  ;  Rigii:s  v.  Brewer,  64  Id.  the  coustrnclioii  of  the  act  of  1876, 

282,  post,  i^  215.  relating  t>  the  lease  of  convicts. 

'"  Boyle  V.  Horner,  104  Pa.  St.  (a)  25  Ed.  8,  stat.  4,  c.  4  ;  Rolle 

379.  V.  Wiivte,  L.  R.  3  Q.  B.  286  ;  Callis 

"8  U.    S.    V.    Collier,  3  Blatchf.  on  SewcM's,  258. 

-325.  {/')  Clarke  v.  Powell,  4  B.  &  Ad. 

109  U.   S.    V.    Freeman,   3   How.  846  ;  Smith  v.  Lindo,  4  C.  B.  N.  S. 

56,  395,  27  L.  . J.  C.  P.  196,  335. 

""  Ibid.     See  also  Georgia  Pen- 


§48]  ACTS    IN     PAlvI    MATKRIA.  01 

which  enacts  tliat  dainai^u  arising  from  non-observance  of 
the  sailing  rules  shall  be  prima  facie  deemed  to  have  been 
occasioned  by  "the  wilful  default"  of  the  person  in  charge 
of  the  deck,  the  expression  "  wilful  default"  was  construed 
by  the  light  of  the  later  Shipping  Act  of  1802,  the  24th 
section  of  which  declares  that  the  ship  which  occasioned  the 
collision  shall  be  deemed  to  be  "in  fault,"  as  including  a 
negligent  as  well  as  a  criminal  default  (a).  [So,  where  an  act, 
passed  in  1805,  forbade  discrimination  on  account  of  color  or 
race,  in  any  licensed  inn,  in  any  public  place  of  amusement, 
etc. ;  and  another  passed  in  1800,  forbade  the  exclusion  of 
personsfromany  public  places  of  amusement,  "licensed under 
the  laws  of"  the  commonwealth,  it  was  held,  upon  compari- 
son of  the  two  acts,  that  the  public  places  of  amusement 
referred  to  in  the  earlier  must  be  construed  to  mean  such  as 
were  licensed  under  the  laws  of  the  commonwealth.'"  In 
other  words,  the  understanding  of  the  phrase  in  the  earlier  act 
was  dictated  by  the  explicit  language  of  the  later.  Similarly, 
acts  have  been  construed  as  not  repealing  others  by  implica- 
tion, by  reference  to  the  fact  of  a  subsequent  express  repeal 
thereof  by  still  another  act  ;"^  and  the  passage  of  an  act  in 
1851  authorizing  securities  from  husband  to  wife  to  be  taken 
in  the  name  of  a  third  person  as  trustee  and  declaring  securi- 
ties theretofore  taken  directly  by  the  wife  from  her  husband 
valid,  was  invoked  as  showing  a  legislative  construction  of  the 
Pennsylvania  married  woman's  act  of  1848  to  the  effect  that 
it  was  not  intended  to  sanction  such  direct  dealings  between 
husband  and  wife."'] 

General  rules  and  forms  made  under  the  authority  of  an 
Act  which  enacted  that  they  should  have  the  same  force  as  if 
the_y  had  been  included  in  it  have  also  been  referred  to  for 
the  purpose  of  assisting  in  the   interpretation  of  the  Act  (h). 

§  48.  Expired  and  Repealed  Acts  in  Pari  Materia. — The  lan- 
guage and  provisions  of  expired  and  repealed  Acts  on  the 

(a)  Grill  v.    The    Screw   Collier  Gross,    2    Penr.  &  W.  (Pa.)  171. 

Co.,  L.  R.  1    C.  P.  Gil,  pel-  Willes,  '^^  Bear's  Administrator  v.  Bear, 

J.  33  Pa.  St.  535,  530.     But  see  post, 

'"  Com'di  V.  Sylvester,  13  Allen  §  53,  and  compare  post,  g§   365,, 

(Mass.)  247.  306. 

"•-  See  Cape  Girardean   Co.  Ct.  (b)  lie  Andrew,  1  Ch.  D.  358. 
V.  Hill,   118  U.  S.  68  :   Moyer  v. 


62  ACTS    IX    PAia    MATERIA.  [§  48 

eame  subject  and  the  construction  whieli  they  have  authori- 
tatively received  arc  also  to  be  taken  into  consideration  [in 
the  construction  of  a  statute,  as  parts  of  the  general  system, 
or  possibly  more  properly  as  instructive  steps  in  the  develop- 
ment of  the  existing  system,  of  legislation  upon  the  point  in 
question."*]  Thus,  202nd  section  of  the  Bankrupt  Act  of 
1849,  which  makes  "  void  "  all  securities  given  by  a  bankrupt 
to  a  creditor  to  induce  the  latter  to  forbear  opposition  to 
the  bankrupt's  certificate,  was  construed  in  the  same  sense  as 
that  which  had  been  given  to  the  same  provision  in  the 
earlier  and  repealed  Bankrupt  Act  of  the  6  Geo.  4  {a). 
What  was  meant  in  the  Vagrant  Act,  5  Geo.  4,  c.  8,  by 
"running  away,  leaving  his  or  her  child  chargeable  to  the 
parish,"  was  determined  bj  referring  to  the  earlier  Act  of 
5  Geo.  1,  which  spoke  of  persons  who  "run  or  go  away 
from  their  abodes  into  other  counties  or  places,  and  some- 
times out  of  the  kingdom,"  and  M-as  therefore  lield  not  to 
apply  to  a  woman  who  left  her  children  at  the  door  of  the 
workhouse,  and  returned  to  her  usual  abode  in  the  town, 
where  the  workhouse  was  situated  (J).  [And  ch.  74,  §  3,  of 
the  Revised  Statutes  of  Massachusetts,  forbidding  the  bring- 
ing of  an  action  to  charge  a  party  on  his  representation 
concerning  the  character,  etc.,  of  another,  unless  such  repre- 
sentation was  in  writing,  was  held  to  apply,  like  the  repealed 
act  of  1834,  c.  182,  §  5,  only  to  representations  alfecting  the 
credit  of  another."'^  So,  the  definitions  of  a  word  given  by  a 
former  act  in  pari  materia,  which  has  been  repealed,  may  be 
properly  consulted.'"] 

"■•See  Medbury  v.    Watson,    6  see  also  Exp.  Copeland.  3  DeG., 

Mete.    (Mass.)     246  ;     Daniels    v.  M.  &  G.  914,  22  L.  J.  Bey.  17. 

Com'tb,    7  Pa.    St.  871,    373,   cit.  (^»)  Cambridge  Union  v.  Parr,  10 

Churcb  V.  Crocker,  3  Mass.  17,21;  C.  B.  N.  S.  991.  30   L.  J.   M.  C. 

Ilolbrook    V.   Ilolbrook,    1    Pick.  241.  ;3e)- Bylcs,  J. 

(Miss.)  254.       See    also    Ford    v.  "^  Medbiuy  v.  Watson,  6  Mete. 

Burcb,  6  Barb.  (N.  Y.)  60  ;  Tbayer  (Mass.)  246.      But,  of  coarse,  the 

V.  Dudley,  3  Mass.  296  ;   Holland  repealed    act,    though     re-enacted 

V.    Makepeace,    8    Id.    418.    423;  with  some  changes,  whilst  it  may 

Mendon    v.    Worcester,    10    Pick,  be  so  considered  in  construing  the 

(Miiss.)  235  ;  Coflin  v.  Kich,  45  Me.  repealing  act,  is  itself  of  no  opera- 

507  ;  Henry  v.  Tilson,  17  Vt.  479  ;  tive  force  whatever  excejit   in  so 

Coleman   V.    Davidson    Acuidemy,  far  as  it  is  continued  in  force  by 

Cooke,  (Tenn.)  258  :  Forqueran  v.  saving    clauses    and    exceptions  : 

Donnallv,  7  W.  Va.  114.  Coffin  v.  Kich,  45  Me.  507. 

(«)  Goldsmid  v.    Hampton.  5  C.  "»  Exp.    Crow    Dog,  109   U    S 

B.  N.  S.  94,  27   L.  J.  C.  P.  286  ;  556. 


§§  49,  50]  ACTS    IN    PARI    MATERIA.  63 

§  49.  Repealed  Portions  of  Acts. — [III  the  same  inaniier,! 
where  a  part  of  an  Act  has  been  repealed,  it  must,  ah.liougli 
of  no  operative  force,  still  be  taken  into  consideration  in 
construing  the  rest.  If,  for  instance,  an  Act  which  imposed 
a  duty  on  racehorses,  cabhorses,  and  all  other  horses  were 
repealed  as  regards  racehorses,  the  ren)aining  words  would 
still  obviously  include  them,  if  the  enactment  were  read  as 
if  the  repealed  words  had  never  formed  a  part  of  it  {a). 
Where  a  statute  imposed  a  duty  on  artificial  mineral  wateis 
[and  all  waters  impregnated  with  carbonic  acid  gas]  and  on 
all  other  waters  to  be  used  as  medicines,  and  the  duty  on 
artificial  mineral  waters  was  afterwards  repealed,  the  repealed 
words  were  held  essential  for  determining  whether  what 
still  subsisted  of  the  Act,  though  wide  enough  to  include 
artificial  waters,  was  intended  to  include  them  (b).  [So,  in 
construing  a  section  of  an  act  remaining  in  force,  resort  may 
be  had  to  a  proviso  to  it  which  has  been  repealed.'" 

§  50.  Repealed,  etc.,  Acta  Expressly  Referred  to. — [Whilst  the 
propriety  of  comparing  expired  or  repealed  statutes,  or  parts 
of  statutes,  with  those  remaining  in  force,  for  the  purpose 
of  construing  the  latter,  is  unquestionable,  in  the  absence  of 
any  reference  to  them  in  the  statute  under  construction,"' 

(a)    Per    Bramwell,    L.    J.,     iu  common  victuaUer,  oi' of/iei- person 

Atty.-Gen.    v.    Lamplongli,    3  Ex.  sbimld   sell   any   brandy,    rum  or 

D.  214,  47  L.  J.  555.  otber  spirituous  liqnor  in   a  less 

(i)  Ibid.     [It  was  beld  reversing  qiianiity  than  15  gallons   under  a 

tbe  lower  court  tbat  the  water  tax-  penalty  of  not  more  than  §20  nor 

able  under  the  first  bead,  did  not,  less  than   $10,    and     repealed    all 

upon    tbe    repeal     of    tbat    item,  acts     then    in    force    inconsistent 

become    taxable    under  tbe   more  with  it,  it  was  held  that  (.iitre  ^^as 

general  clause.     See  the  opinion  of  no  inconsistency  .between  tbe  acts 

Kelly,  C.  B.,  the  dissentient  judge  as  to  the  seller  *aud  tbe  kind  and 

iu  tbe  lower  court,  at  p.  22i) :  "  No  quantity  of  liquors  with  reference 

judge  ever  laid  down  as  law  tbat,  to    one  wd)o   was  neither  an   inn 

where  a   particular  clause    in   an  holder    nor   a   common     victunler 

Act  of  Parliament  is  repealed,  tbe  convicted   under    the    first  act  of 

whole  Act  must  be  read  as  if  that  selling   s|iirituous    liquor,    but  an 

clause    had    never    been  enacted,  inconsistency  as  to  tbe  penalty,  and 

All  that  can  be  said  is  tbat  the  tbat,  therefore,    be  could   not  be 

clause  is  to  be  taken  as  if  it  had  sentenced  :  Com'tb  v.  Kimball,  21 

never  been  enacted."      But  where  Pick.    (Mass.)  87o.       See  post,  §§ 

an    act    provided   tbat    ')io  person  236.  239.] 

should  sell  uine,  brandy,  rum  or  '^■'  Bank  for  Savings  v.    Collec- 

otber  spirituous  liquors  in  quan-  tor,  3  Wall.  495 ;  Exp.  Crow  Dog, 

titles  less  than  28  gallons,  without  109  U.  S.  556. 

liccn.'-e,  under  a  penalty  of  ,|20  for  "^  See  Forqueran  v.  Donnally.  7 

each  offence  ;  and  a  later  act  pro-  W.  Va.  114.     Nor  can   a   proviso 

vided  tliat  no  inn  hokler,  retailer,  which  is  void,  because  unconstitu- 


64  ACTS    TN    1'.\I;T    MATKKIA.  l§  51 

the  propriety  of  such  comparison  is  still  more  obvious  where 
there  is  an  express  reference,  in  the  statute  in  force,  to  the 
repealed  statute.  It  is  said,  that,  where  an  act  superseding  a 
former  one  refers  to  the  latter,  the  superseding  statute  must 
be  consti'ued  with  reference  to  the  superseded  one."'  And 
notwithstanding  the  repeal  of  Wis.  llev.  St.  1878,  §  1210a, 
the  words  of  §  1210b,  "  anj'  of  the  causes  mentioned  in 
§  1210a,"  etc.,  were,  it  was  held,  to  be  understood  as  if  the 
enumeration  of  causes  thus  referred  to  were  incorporated  in 
§  1210b,  and  §  1210a,  though  repealed,  was  to  be  looked 
at  to  ascertain  what  they  were.'" 

§  51.  Revisions— Codifications — Re-enactments- — [The  rule 
which  permits  a  resort  to  repealed  and  superseded  statutes, 
in  pari  materia,  is  of  great  importance  in  the  construction 
of  statutes  which  re-enact,  with  changes,  and  repeal  former 
ones,  and  in  that  of  enactments  containing  revisions  or  codi- 
tications  of  earlier  laws.  As  to  the  former,  it  is  obvious 
that  a  change  of  language  is  some  indication  of  a  change  of 
intention.  Thus,  where]  a  repealed  Act  imposed  a  penalty 
on  the  owner  of  cattle  found  lying  on  the  highway  "  with- 
out a  keeper,"  and  the  same  provision  was  re-enacted  with- 
out the  last  words,  the  omission  was  construed  as  obviously 
showing  the  intention  that  the  presence  of  a  keeper  sliould 
no  longer  absolve  the  owner  from  liability  (a).  [And  so, 
vvhere  the  latter  of  two  acts  upon  limited  partnerships  failed 
to  prescribe  a  penalty  for  a  certain  omission,  for  which  the 
first  act  had  provided  a  penalty,  the  court  said :  "  The 
omission  to  prescribe  a  penalty  .  .  is  good  reason  for  con- 
cluding that  no  such  liability  was  intended.'"'  As  to  codi- 
fications and  revisions,  which,  upon  a  prin('i})le  that  will 
hereafter  become  manifest,  are  held,  in  general,  to  repeal 
the  enactments  covered  by  their  provisions,'"^  it  is,  no  doubt, 

tional,  be  disregarded  in  the  inter-  King,  77  Me.  224. 

pretation  of  the  section  to  whieli  it  •-"  Flanders   v.    Merrimack,    48 

is  appended:  Com'tli   v.  Potts,    79  Wis.  507. 

Pa.  St.  164.  (a)  27  &  28  Vict.  c.  101.  s.  25  ; 

"^  llam  V.  Boston  B'd  of  Police,  Lawrence  v.  King,  L.  li.  3  Q.  B. 

142  Mass.    90  ;  and  hence   il    was  345  ;  see  also  R.  v.  Moah,  Dearsl. 

held  ihat  the  act  of  1885,  giving  the  026  ;  I'xp.  Gorcly,  34  L.  J.  Bey,  1. 

board  power  to  remove  for  cause,  '•'  YA'ioi  v.   llimrod,  108  Pa.  St. 

required  notice  and  hearing  before  56!),  573.     But  see  as  to  the  limit 

removal  :  ibid.     See   also,  on   this  of  ihis  rule,  post,  i?,^  378-381. 

question    of   power,    Andrews    v.  ''■''■'  See  post,  §g  201,  202. 


I  52]  ACTS    IN    PART    MATERIA. 


6i 


true,  that,  like  the  Kevised  Statutes  of  the  United  States, 
the  J  must  be  accepted  as  the  law  upon  the  subject  they 
embrace,  as  it  existed  when  the  Revision  or  Code  went  into 
force,  and  that,  consequently,  when  their  meaning  is  plain 
the  Court  cannot  recur  to  the  original  statute  to  see  if 
errors  were  committed  in  revising  them.'"  Yet  is  has  been; 
conceded  that,  where,  in  construing  the  language  of  a  code 
or  a  revision  of  statutes,  there  is  a  substantial  doubt  as  tO' 
its  meaning,  the  original  statute  may  be  looked  at  and  con- 
sidered."* And  more  especially  is  this  the  case,  where  the- 
act  authorizing  the  codification  requires  marginal  references 
to  the  sessions  acts."^] 

§  52.  Acts  upon  Similar  Subjects. — Tlie  construction  which 
has  been  put  upon  Acts  on  similar  subjects,  even  though 
the  language  should  be  different,  should  for  a  similar  reason 
be  referred  to.''°  Thus,  the  Insolvent  Act,  1  &  2  Yict.  c. 
110,  s.  37,  which  vested  in  the  provisional  assignee  all  the 
insolvent's  debts  which  became  due  to  him  before  his  dis- 
charge, received  the  same  construction  as  a  similar  provis- 
ion in  the  Bankrupt  Act  of  6  Geo.  4  {a).  The  provision  of 
the  9  Geo.  4,  c.  14,  requiring  that  an  acknowledgment  to 
take  a  debt  out  of  the  Statute  of  Limitations  should  be 
signed  "  by  the  party  chargeable  thereby,"  was  held  not  to 
include  an  acknowledgment  by  his  agent,  on  the  ground 
that  when  the  Legislature  intended  to  include  the  signature 
of  agents,  not  only  in  other  Statutes  of  Limitations,  but  also 
in  several  sections  of  the  Statute  of  Frauds,  one  of  which 
was  recited  in  the  Act,  express  words  had  been  used  for  the 
purpose  {b).  So  the  County  Court  Act  of  1867,  which 
gives  jurisdiction  in  ejectment  when  the  value  of  the  tene- 
ment does  not  exceed  twenty  pounds,  was  construed,  as 
regards  the  measure  of  value,  by  reference   to  the  Parlia- 

123  U.  S.  V.  Bowen,  100  U.  S.  between  two  sections,  the  original 
508  ;  Arthur  v.  Dodge,  101  Id.  34  ;      statute  governs. 

Victor  V.  Arthur,  l6'4  Id.  498.  "'^  See  Whitcomb  v.    Rood.    20 

124  Myer  v.  West.  Car  Co.,  103  Vt.  49  :  Smith  v.  People,  47  N.  Y. 
U.    S.    1  ;  Pratt  v.  Boston   Street      330. 

Comm'rs.  139  Mass.  559.  (a)  Jackson  v.  Burnham,  8  Ex. 

i'^5  Nicholson  v.  Mobile,  &e.  R.      173,  22  L.  J.  Ex.  63  ;   Herbert  v. 
R.  Co.,  49  Ala.  205  ;  where  it  was      Snyer,  5  Q.  B.  965. 
held,    that,    in    case    of    conflict         (b)  Hyde  v.  Johnson,  2  Bing.  ISf 

C.  776. 


66  .ACTS    IX    PARI    MATERIA.  [§  53 

mental'}'  Assessment  Act  (a).  Tluit  which  was  hokl  a  suffi- 
cient signature  to  a  will  or  contract  under  the  Statute  of 
Frauds  {b)  was  held  sufficient  under  the  Bankrupt  Act,  6 
Geo.  4.  c.  10,  s,  131  (c),  under  the  Statute  of  Limitations 
(d),  and  under  the  Registration  of  Voters  Act  {e).  [So, 
nj)on  the  ground  that  statutes  having  similar  objeets  are  to 
be  construed  alike,  the  same  i)rinciples  that  apply  to  the 
■construction  of  baidvruptcy  laws  were  held  to  govern  in  the 
case  of  a  statute  to  prevent  frauds  by  incorporated  com- 
panies, the  statute  having  in  view  a  similar  object,  namely, 
an  equal  distribution  of  assets  among  creditors.'"  And 
where,  under  an  act  allowing  an  execution  debtor  to  claim  a 
certain  exemption,  it  had  been  held  that  the  claim  must  be 
made  so  as  to  cause  no  delay  and  before  expense  had  been 
incurred,  this  construction  was  applied  also  to  subsequent 
acts  allowing  a  widow  to  claim  certain  property  out  of  her 
husband's  estate,'**  and  an  assignor  to  retain  a  certain 
amount  of  property,'""  none  of  the  acts  fixing  any  time  with- 
in which  the  rights  conferred  by  them  should  be  exercised, 
but  all  luiving  a  similar  ])urpose  and  effect. 

§  53,  Purpose,  Effect,  Basis  and  Limits  of  this  Rule. — [The 
purpose  of  the  rule  of  construction,  under  discussion,  is,  of 
course,  like  that  of  every  other,  to  elucidate  the  meaning  of 
a  given  statute.  Its  method  is  to  ascertain  the  meaning  of 
any  particular  phrase  or  provision  in  the  light  of  every 
direction  made  upon  the  subject  njatter'  it  refers  to  by  the 
Legislature  up  to  the  time  when  the  court  is  called  upon  to 
pronounce  its  judgment.  It  requires  particular  pln-ases,  left 
doubtful  by  the  act  itself,  to  be  construed  as  s^nionymuus 
with,  or  analogous  to,  the  same  phrases  used  in  other  statutes 
upon  the  same  subject  in  such  connections  or  surroundings 
as  define  their  meaning  beyond  question,  or  point  emphati- 

(u)  31  &  33  Vict.  c.  142,  s.  11;  (d)  Lobb   v.  Stanley,    5    Q.    B. 

Elstou  V.  Rose,  L.  R.  4  Q.  B.  4.  574,  per  Patterson,  J. 

(b)  Lemane  v.  Stanley,  3  Lev.  1  ;  (e)  6  &  7  Vict.  c.  18,  s.  17  ;  Ben- 
Knight  v.  Crockford,  1  Exp.  190  ;  uett  i:  Biuntilt,  L.  R.  3  C.  P.  28. 
Herbert  v.  Trebernc,  3  M.  &  Gr.  '-'  Receivers  of  People's  B'k  v. 
343.  Paterson  Sav.  B'k,  10  N.  J.  Eq.  13. 

(c)  Ogilvy  V.  Foljambe,  3  Mer.  i-«  Davis'  Api).,  34  Pa.  St.  25G. 
.53  ;   Kirkpatrick  v.  Tattersall,  13         '-'^  Chilcoat's  A  pp.,  101  Id.  26. 
31.  «&  W.  76G. 


§  53]  ACTS  IN  PARI  mati;ria.  67 

callj  to  a  certain  interpretation.  It  reqnires  gaps  left  in  the 
act,  not  amounting  to  casus  oniissi,  to  be  filled  from  the 
materials  supplied  bj  other  statutes  upon  the  same  subject 
and  in  harmony  with  them.  It  requires  words  capable  of 
several  meanings,  the  choice  among  which  is  not  determined 
by  the  use  of  words  in  a  definite  and  unmistakable  sense  in 
one  of  the  other  statutes,  to  be  so  construed,  if  possible,  as 
to  preserve  in  force  and  effect,  side  by  side  with  them,  the 
words  of  earlier  statutes,  to  the  avoidance  of  an  interpretation 
which  would  raise  a  repugnancy  between  the  earlier  and  the 
later  statutes,  fatal  to  the  ormer.  The  effect  is  to  preserve 
harmony  and  consistency  in  the  entire  bodj^  of  the  legislation 
upon  a  given  subject  matter.  That  this  result  must  be  in 
consonance  with  the  intention  of  the  Legislature,  and  that 
the  methods  enforced  by  this  rule  to  ascertain  the  same  are 
effectual  for  the  purpose,  is  manifest  from  the  obvious  con- 
siderations lying  at  the  bottom  of  the  rule  itself :  that  the 
Legislature  is  not  ignorant  of  the  previous  course  of  legisla- 
tion upon  a  subject  it  undertakes  to  legislate  upon  j'^"  and 
that,  when  dealing,  at  different  times,  with  the  same  subject, 
it  may  be  supposed  to  use  the  same  words  in  the  same  sense.^" 
The  statement  of  the  rule,  however,  as  flowing  from  these 
propositions,  carries  with  it  its  own  limitation.  It  is  clear, 
that,  where  the  statute  under  construction,  taken  by  itself, 
viewed  in  the  light  of  the  objects  it  is  intended  to  attain  and 
applied  to  the  subject  matter  it  effects,  evinces  a  design  to 
depart  from  the  general  and  previously  existing  system  of 
legislation  thereon,  or  to  use  words  in  a  sense  different  from 
tliat^  in  which  they  are  used  in  other  acts  on  the  same 
subject,  this  intention  cannot  be  defeated,  and  the  rule, 
therefore,  is,  in  such  case,  inapplicable. "'^  In  other  words, 
where  the  language  of  the  statute  is  plain  and  explicit,  it 
cannot  be  controlled  by  the  rule  in  pari  materia."'  JN^or  can 
that  rule  be  properly  resorted  to  where  the  construction  of 
the  words  of  an  act  in  their  ordinary  sense  would  not  inter- 
im" Howard  Ass'n's  App.,  70  Pa.  '^"  See  Couuty  Seat  of  Linn  Co., 
St.  044,  34G.                                             15  Kan.  500. 

i^iRobbinsv.  R.  R.  Co.,  33Cal.  ^^^  See    Exp.     Blaiberg,     in    re 

472  ;  County  Seat  of  Linn  Co.,  15      Toomer,  L.  R.  23  Ch.  D.  358,  per 
Kan.  500.  Jessel,  M.  R. 


6S*  ACTS    N(vr    IX    TAKT    ^tAT^:RIA.  [§  54!^ 

fere  with  other  enactments  in  pari  materi;'"  and  even 
where  they  do,  though  the  construction  under  this  rule  may 
attribute  to  tliem  a  sense  which  is  not  their  ordinary  sense,, 
the  sense  imposed  upon  them  must  be  one  in  which  they 
are  "  reasonably  capable  of  being  read.'""  Nor  does  the  rule 
ever  go  to  the  extent  of  controlling  the  language  of  a  statute 
by  the  supposed  policy  of  previous  enactments,'^"  And  so 
far  as  the  influence  of  subsequent  legislation  upon  the  con- 
struction of  an  earlier  act  in  pari  materia  is  concerned,  it 
must  be  remembered  that  it  is  the  intent  of  the  Legislature 
that  enacted  a  statute  which  is  to  govern  the  courts  in  its 
construction,'"  and  that,  therefore,  in  general,  tbe  opinion 
of  a  subsequent  Legislature  upon  the  meaning  of  an  act 
passed  by  a  former  one  is  of  no  more  weight  than  that  of 
the  same  men  in  a  private  capacity  ;''*  and  consequently 
mere  inferences  from  the  language  of  an  act  passed  by  a 
subsequent  Legislature  cannot  properly  interfere  with  the 
construction  of  a  statute  according  to  its  plain  import."^] 

§  54.  Acts  not  in  Pari  Materia.— But  where  Acts  are  not  iu 
pari  materia,  [i.  e.,  where  they  do  not  form  an  united  system 
and  cannot  be  regarded  as  such,'"]  it  is  fallacious  to  take  the 
construction  wdiich  has  been  put  upon  one  as  a  guide  to  the 
construction  of  another  (a).  [The  meaning  which  one 
legislative  body  attaches  to  its  use  of  a  term  in  an  act  passed 
l)y  it,  cannot  be  conclusive  as  to  the  meaning  in  which 
another  legislative  body  employs  the  same  term  in  a  different 
act.'"]    For  instance,  the  meaning  put  on  the  word  "  goods  " 

i^'*  See   R.    V.    Tonbridge  Over-  '^o   See  United    Soc'y  v.    Eagle 

seers,  L.  R.  13  Q.  B.  D.  342,  per  Bank,  7  Conn.  457,  4()9. 

Brett,  M.  R.  («)  Dewhurst  v.  Fieldcn,  7  M.  & 

1-5  See  Ibid.  Gr.    187,   per  Maide,  J. ;   Eyre   v. 

13';  C;oo(lrich  V.  Russcl,  42  N.  Y.  Waller,  5  II.  &  N.  400,  29  L.  J. 

177.     But  it  has   been  said    that  247,  per  Wilde,  B. 

even  an  Eni^lish  statute  declaring  '■*' Feagin  v.  Cc)mi)tr<)ller,  42  Ala. 

the  law  upon  a  matter  of  doubt  at  516,  where  an  act   increasing   the 

common  law,  tiiough  of  no  author-  sheriff's    "fees"  was   held  not   to 

ity  as  such  in  this  country,  may,  increase  his  "fees"  for  victualling 

as   strictly   a   declaratory   law,  be  prisoners,  other  acts  showing,  that, 

entitled  to  weight  :  Bull  v.  Love-  though    the    act    d(!sign,iting    the 

land,  10  Pick.  (Mass.)  9,  13.  amount  to  be  allowed  him  for  that 

'"  See  post,  g^  305-368.  purpose,  spoke  of  it  as  "fees,"  it 

138  Bingiiam  v.    Supervisors    of  was  not  to  be  regarded  as  strictly 

Winona,  8  Minn.  441.  such  in  the  legislative  sense  of  (he 

'=»  Ingalls  V.  Cole,  47  Me.  530.  word,    but    as    "allowances"    or 


§  55J  ACTS    NOT    IN    PARI    MATERIA.  Oif* 

in  tlie  reputed  ownership  clause  of  the  Bankrupt  Acts  M-ould 
be  no  guide  to  its  meaning  in  the  17th  section  of  the  Statute 
of  Frauds,  not  only  because  the  words  associated  with  it  are 
different,  but  because  the  objects  of  the  Act  are  wholly 
different  (a).  For  the  same  reason,  the  Parochial  Assess- 
ment Act,  G  &  7  Will.  4,  c.  96,  was  held  to  throw  no  light 
on  the  meaning  of  "the  clear  yearly  value"  of  a  tenement 
which  qualilied  a  voter  upon  the  Kcforni  Act  of  1832  {b). 
Because  Chambers  are  "  a  house  "  for  the  purpose  of  assess- 
ment to  a  poor  rate  under  the  43  £liz.  c.  2  (c),  of  gaining  a 
settlement  under  the  6  Geo.  4,  c.  57  {d),  of  qualifying  for  a 
vote  under  the  Reform  Act  of  1832  (e),  and  also  as  a  place 
in  which  a  burglary  might  be  committed  (/*),  it  did  not 
follow  that  the  same  meaning  was  to  be  given  to  the  expres- 
sion in  the  48  Geo.  3,  c.  55,  which  imposed  a  duty  on  "  in- 
habited houses"  (^).  A  bicycle,  which  is  a  "carriage" 
within  an  enactment  against  furious  driving,  would  not 
necessarily  be  also  a  carriage  under  a  turnpike  Act  which 
imposed  a  toll  on  carriages  impelled  by  steam  or  other 
agency  (A). 

§  55.  Private  Acts  and  Special  Clauses. — It  may  be  added 
that  in  construing  Acts  of  a  private  or  local  character,  such 
as  railway  Acts,  the  Courts  do  not  shut  their  eyes  to  the 
fact  that  special  clauses,  frequently  found  embodied  in  them, 
are  in  effect,  private  arrangements  between  the  promoters 
and  particular  persons,'"  and  are  not  inserted  by  the  Legis- 
lature as  part  of  a  general   scheme  of  legislation,  but  are 

"accounts."    And  see  Spencer  v.  See  also  R.  ■».  Oxford  (V.  C),  L. 

Metrop.  B'd  of  Works,  L.    R.    22  R.  7  Q.  B.  471. 

-Ch.  D.  157.  (h)  Williams  v.  Ellis,  5  Q.  B.  D. 

(a)  Humble  v.  Mitchell,  11  A.  &  175. 

E.  205.  "^  So  it  has  been  held  that  the 

\b)  2  Wm.  4,  c.  45,  s.  27  ;  Colvill  rule  that  words  are  to  be  taken  in 

0.  Wood,  2  C.  B.  210.  the    strongest   sense    against    the 

,(c)  R.  'v.  St.   George's  Union,  L.  party  using  them,  does  not  apply 

R.  7  Q.  B.  90.  to  a  contract  by  the  State  in  grant- 

(d)  R.  v.  Ushworth,  5  A.  &  E.  ing  a  charter,  the  promoters, 
•361.  rather  than  the  Legislature,  being 

(e)  Henrette  v.  Booth,  15  C.  B.  regarded  as  the  framers  of  the 
N   S.  50,  33  L.  J.  6.  language  :  Raleigh,  &c.  R.  R.,  Co. 

(/)  Evans'  Case,  Cro.  Car.  473.        v.  Reid,  64  N.  C.  155  ;  Wilmington. 
(V)   Alty-Oen.     v.    Westminster      &c.  R.  R.  Co.  v.  Reid,   Id.    226 ; 
Chambers   Assoc,  1    Ex.  D.  469.      McAden  v.  Jenkins,  Id.  796. 


70 


ACTS    >'OT    TX    PART    :>r ATKRTA. 


simp!}'  introduced  at  the  request  (jf  the  parties  concerned. 
If  the  ii^eneral  provisions  of  sncli  Acts  were  to  override  such 
special  clauses,  those  in  whose  favor  the  latter  are  inserted 
wouKl  have  a  just  claim  to  l)e  heard  in  Coriiniittee  on  every 
clause  of  the  Act,  which  would  make  it  impossible  to  con- 
duct any  private  legislation  {a).  Such  special  clauses  are 
therefore  treated  as  isolated,  and  foreign  to  the  rest  of  the 
Act ;  so  that  their  wording,  contrary  to  the  general  rule,  i& 
not  to  be  regarded  as  throwing  any  light  on  the  construc- 
tion of  it  (b). 

[Nor,  in  the  exposition  of  private  statutes  conferring 
special  privileges,  or  imposing  particular  obligations,  would  it 
be  pi'oper  to  resort  to  the  language  of  an)'  other  private  act 
not  relating  to  the  same  ])arties  and  subject  matter  ;  such 
statutes  standing  on  the  same  basis  with  contracts  by  deed, 
not  generally  affected  by  evidence  aliunde.'"  "  Private  acts 
of  the  Legislature,  conferring  distinct  rights  on  different 
individuals,  which  never  can  be  considered  as  being  one 
statute,  or  the  parts  of  a  general  system,  are  not  to  be 
interpreted  l)y  a  mutual  reference  to  each  other.  As  well 
might  a  contract  between  two  persons  be  construed  by  the 
terms  of  another  contract  between  different  persons."* 
Accordingly  it  was  held  that  the  charters  of  various  differ- 
ent banks  could  not  be  regarded  as  in  pari  materia,  nor  con- 
strued with  reference  to  each  other.'"  And  though  two  cor- 
porations, boom  companies,  separately  chartered  by  the 
Legislature,  subsequently  became  consolidated,  by  virtue  of 
an  act  of  assembly  which  conferred  upon  the  consolidated 
company  all  the  rights,  privileges  and  immunities,  and  made- 
it  subject  to  all  the  restrictions,  contained  in  the  acts  incor- 
porating each  compan}' ;  it  was  held  that  the  charters  must 
l)e  separately  interpreted,  so  that,  as  before  the  consolida- 
tion, each  company  was  required  to  deliver  the  logs  at  its 
own   boom,   the   liability   of  the    consolidated    company   to 

(rt)  P^^r  Jessel,  M.  R.,  ia  Taylor  '«  Thomas    v.    Mahan,    4    Me. 

V.  Oldiiam,  4  Ch.  D.  410.  513. 

{h)    Per    Lord    Cairns    in    East  '^^  United  Soc'y  v.  Eagle  B'k,  7. 

London   R.    Co.  v.    Whitechurch,  Conn.  457,  469 

L.  R.  7  II.  L.  89.  '■'^  Ibid. 


^§  56,  57]  SPECIAL    AND    GENKKAL    ACTS.  VI 

deliver  the  logs   at   the  boom   in    which  they  were  caught 
remained  unchanged.'" 

§  56.  Special  and  General  Acts  read  together. — [But  it  is  obvi- 
ous  that  statutes  granting  such  special  privileges  are,  in  one 
seuse,  to  be  read  together  and  construed  in  conformity  with 
general  statutes  laying  down  universal  rules  applicable  to 
the  class  of  corporations  to  which  the  one  claiming  under 
the  special  act  belongs.  Thus  it  has  been  held  in  Pennsyl- 
vania that  railroad  companies  incorporated  by  or  under 
special  acts,  are  subject  to  the  regulation  of  the  general  rail- 
road law  of  February  19,  1849,  except  in  so  far  as  such  reg- 
ulations are  specially  altered  by  the  special  acts,  or  are  so 
inconsistent  therewith  as  to  evince  a  design  to  supersede 
them."""  And  similarly  it  has  been  held  in  New  Jersey, 
that  a  reservation  by  general  law  of  a  right  to  the  state  to 
alter  charters  granted  by  it  will  be  read  inserted  in  each  new^ 
charter,  even  though  no  reference  to  it  be  made  therein."* 
So,  too,  it  has  been  held,  that,  where  a  corporation  claims 
a  right  not  expressly  given  by  its  charter,  upon  the  ground 
of  construction,  the  passage  of  an  act  by  the  Legislature 
subsequently  to  the  charter  inconsistent  with  such  right, 
requires  that  the  charter  be  given  such  construction  as  not 
to  raise  a  conflict  between  it  and  the  statute,  unless  a  con- 
trary interpretation  is  demanded  by  the  general  scope  and 
evident  design  of  all  the  pertinent  provisions  in  the  char, 
ter.'" 

§  57.  Constitutional  Provisions  in  Pari  Materia. — [It  has  occa- 
sionally been  said  that  a  statute  and  a  constitutional  pro- 
vision in  pari  materia  must  be  construed  together.'^"  This 
requisite  stands   upon   a  somewhat  diliorent  ground   from 

"6  Gould  V.  Langdon,  43  Pa.  St.  »»  State  v.  Comm'rs  of  R.  R 
365.  Compare,  however.  Lever-  Tax'n.  37  N.  J.  L.  228. 
ing  v.  R.  R.  Co.,  8  Watts.  &  Serg.  "''  Maysville  Turup.  Co.  v.  How, 
(Pa.)  459,  where  charters  of  vari-  14  B.  Mon.  (Ky.)  426.  See  for 
ous  raih'oad  companies  were  com-  another  instance  of  reading  to- 
pared  for  tlie  purpose  of  constru-  gether  a  special  and  general  act  so 
ing  a  certain  provision  in  that  of  as  to  avoid  a  repeal  of  the  latter : 
the  defendant  corporation,  Comm'rs  of  Excise    v.  Burtis  (N. 

'*'  Mt.   Holly  Paper  Co.'s  App.,  Y.)  4  Centr.  Rep.  235. 

99    Pa.    St.    513.     See    also   New  i=«  See   Billingsley  v.    State,    14 

Brighton  R.  R.  Co.'s  App.  105  Id.  Md.  369.     And  see  also  Aultman's 

13.  App.,  98  Pa.  St.  505. 


72 


CONSTITCTIONAL    TROVISIONS.  [§  5  ' 


that  of  the  rule  above  discussed,  and  seems  more  properly 
referable  to  the  presumption  that  all  legislation  is  intended 
to  conform  with  the  constitution,  a  proposition  which  will 
be  hereafter  discussed.'"] 


»"  See  post  §  181. 


§  58]  TITLE,    ETC.  73 


CHAPTER  III. 

TrrLE,  Marginal  Notes,  Punctuation,  Preamble,  Sched- 
ule, ETC. 

§  58.  Title. 

§  59.  Effect  of  Constitutional  Requirements  as  to  Title. 

§  60.  Mar;i;inal  notes. 

§  61.  Punctuation. 

§  62.  Preamble. 

^  67.  Matters  Similar  to  Preamble.     Recital. 

§  68.  Reports  of  Committees.     Petitions.     Maps.' 

§  69.  Chapter,  Section,  etc. ,  Headings. 

i^  71.  Schedule. 

§  73.  Resume. 

§  58.  Title.— It  has  long  been  established  [in  England]  by 
numerous  judical  decisions  or  dicta,  from  Lord  Coke's  to  the 
present  time,  that  [the  title  of  a  statute]  is  not  a  part  of  the 
statute,  and  is  to  be  therefore,  excluded  from  consideration 
in  construing  the  statute.  "The  title  cannot  be  resorted 
to,''  says  Lord  Cottenham,  "in  construing  the  enactment."  (a) 
"The  title,  though  it  has  occasionally  been  referred  to  as 
aiding  in  the  construction  of  an  act,  is  certainly  no  part  of 
the  law,"  it  is  said  by  the  Court  of  Exchequer,  in  a  well- 
known  and  considered  judgment,  "  and,  in  strictness  ought 
not  to  be  taken  into  consideration   at  all  "  (b).      And  Lord 

(a)  Hunter  v.  Nockolds,  1  McN.  taken  into  consideration  in  the 
&  Gord.  651.  construction   of  an  act,  for  origi 

(b)  Per  Cur.  in  Salkeld  v.  John-  nally  there  were  no  titles  to  the 
son,  2  Ex.  283,  citing  Lord  Coke  acts,  but  onl_y  a  petition  and  the 
in  Powlter's  Case,  11  Rep.  336  :  Kinu's  answer  ;  and  the  judges 
["As  to  the  style  or  title  of  the  thereupon  drew  up  the  act  into 
act,  that  is  no  parcel  of  the  act,  form  and  then  added  the  title;  and 
and  ancient  statutes  were  without  the  title  does  not  pass  the  same 
any  title,  and  many  acts  are  of  forms  as  the  rest  of  the  act,  only 
greater  extent  than  tbe  titles  are."]  the  Speaker,  after  the  act  is  passed. 
Lord  Holt  in  Mills  v.  Wilkins,  6  mentions  tlie  title  and  puts  the 
Mod.  62  ;  Lord  Hardwicke  iu  question  upon  it  ;  therefore  the 
Atty.-Geui.  v.  Weymoutli,  Ambl.  meaning  of  the  act  is  not  to  be 
22:  ["  The  title  is  no  part  of  the  inferred  from  the  title."]  Lord 
act,  and  has  often  been  determined  Mansfield  in  R.  v.  Williams,  1  W. 
not  to  be  so,  nor  ought  it  to  be  Bl.  95.    See  also  Chance  v.  Adams, 


74 


TITI.K,    ETC. 


[§58. 


Denman  reniarkod  that  the  Court  had  often  laid  that  down 
{a).  [In  this  country,  whilst  the  title  of  a  statute  is  not,  in 
general,  regarded  as  a  part  of  the  same,'  it  is  nevertheless 
reo-arded  as  a  legitimate  aid  in  ascertaining  the  intention  of 
the  Legislature  when  the  language  and  provisions  m  the 
body  of  the  act  are-  ambiguous  and  of  doubtful  meaning  and 
application  ;'  as,  for  example,  where  a  statute  purported,  in 
its  body,  to  correct  schedule  M  of  section  25  of  the  Revised 
Statutes  of  the  United  States,  and  section  25  had  no  schedule 
M,  a  reference  to  the  title,  an  act  to  "  correct  an  error  in 
section  2504  of  the  Revised  Statutes,"  etc.,  was  held  permis- 
sible to  explain  and  rectify  an  obvious  error.' 

§  59.  Eflfect  of  Constitutional  Requirements  as  to  Title. — [The 
propriety  of  such  reference  is  especially  manifest  where  the 
title  is  referred  to  in  the  body  of  the  act,'  and  all  the  more 
justifiable,  in  cases  of  uncertainty,  where  the  constitution 


1  Lord  "Raym.  77  ;  and  per  Byles, 
J.,  in  Shrewsbury  v.  Scott,  6  C.  B. 
N.  S.  1,  29  L.  .1.  C.  P.  34;  per  Lord 
St.  Leonards,  in  Jeffreys  v.  IJnosoy, 
4  n.  L.  982,  24  L.  J.  Ex.  109  ;  jwf 
Grove,  J.,  in  Morant  v.  Taylor,  1 
Ex.  D.  194  ;  and  the  American 
Case,  Haddcu  v.  Tiie  Collector,  5 
Wallace,  110. 

(a)  R.  V.  Wilcock,  7  Q.  B.  329. 
The  rule  has  not,  indeed,  been 
invariably  observed.  See  ex.  gr. 
R  V.  Wright,  1  A.  &  E.  446  ; 
Alexander  v.  Newman,  2  C.  B. 
141  ■  Taylor  v.  IScwman,  4  Best. 
&  S.'  93,  32  L.  .T.  189  ;  Rawley  v. 
Rawley,  1  Q.  B.  D.  466  ;  Bentley 
V.  Rothcram,  4  Ch.  D.  588  ;  for  the 
mind,  when  laboring  to  discover 
the  design  of  the  Legislature, 
natually  seizes  on  everything  from 
which  aid  can  be  derived.  Per 
Cur  in  U.  S.  v.  Fisher,  2  Cranch, 
386  ;  U.  S.  V.  Palmer,  3  Wheat. 
631.  [See  People  v.  Shoonmakcr, 
03  Barb.  (N.  Y.)  49.]  It  has  even 
been  occasionally  asserted  that  its 
title  was  i)art  of  a  Statute,  and 
w:is  not  to  be  disregarded  in  con- 
struiiiL!;  it.  See  Brett  v.  Brett,  3 
Addams,  Ec.  217;  llinton  v.  Dib- 
ben,  2  Q.  B.  663,  per  Cm. :  Wilmot 


V.  Rose,  3  E.  &  B.  576.  23  L.  J. 
281,  per  Lord  Campbell  :  Free  v. 
Burgovne,  2  Bli!2:h  N.  S.  78  ;  Blake 
v.  Midland  R.,  18  Q.  B.  109  ;  John- 
son V.  Upham,  2  E.  &  E.  263; 
Allkins  V.  Jupe,  2  C.  P.  D.  383  ; 
and  Coomber  v.  Berks,  9  Q.  B.  D. 
26.  But  it  does  not  seem  that  oil' 
those  occasions,  attention  was  di- 
rected to  the  established  rule. 

1  See  Ogden  v.  Strong.  2  Paine, 
584  ;  Plununer  v.  People,  74  111. 
361  ;  Com'tii  v.  Slifer.  53  Pa.  St. 
71;  McFate's  App.,  105  Id.  323, 
326;  Colieu  v.  Barrett,  5  Cal.  195  ; 
Bradford  v.  Jones,  1  Md.  351  ; 
Burgett  v.  Burgett,  1  Ohio.  409  ; 
rJarrigus  v.  Com'rs,  39  Lid.  66  ; 
State  V.  Stephenson,  2  Bailey  (S. 
C.)  ;>34  ;  State  v.  Welsh,  3  Hawks 
(N.  C.)  404;  Eastman  v.  Mc  Alpin, 
1  Ga.  157  ;  and  see  cases  in  suc- 
ceeding notes. 

2  See  U.  S.  V.  Palmer,  3  Wheat. 
610  ;  Mines  v.  R.  R.  Co.,  95  N.  C. 
434  ;  and  see  cases  in  preceding 
note. 

»  Wilson  V.  Spaulding,  19  Fed. 
Rep.  304. 

*  Torreyson  v.  Examiner,  7  Nev. 
19. 


§  59]  TITLE,     ETC.  75 

givessigiiificance  and  assigns  particular  importance  to  the  title 
by  requiring  that  a  statute  shall  contain  but  one  subject,  and 
that  it  shall  be  expressed  in  the  title. ^  It  is  itideed  said, 
that,  under  a  constitutional  prohibition  against  more  than 
one  subject  in  any  statute  and  a  requirement  of  its  clear 
expression  in  the  title,  the  latter  necessarily  becomes  a  part 
of  the  statute,^  "'  and  aids,  if  need  be,  in  its  construction,'" 
as  "  a  very  important  guide  to  its  riglit  construction."* 
But,  unless  the  constitution  imperatively  prescribes  a  dif- 
ferent relation  betvi^een  the  title  and  the  body  of  the  act, 
the  rule  remains  that  the  form.er  may  be  consulted  in  aid 
of  the  interpretation  of  the  latter,  only  in  cases  of  ambiguity 
and  uncertainty  in  its  provisions,*  in  aid  "  if  need  be '""  of 
their  construction.  It  can  never  control  the  plain  and 
unambiguous  meaning  of  the  language  of  the  statute,"  nor 
be  used  to  extend  or  restrain  its  positive  provisions ;"  so 
that,  even  in  the  interpretation  of  a  penal  law,  if 
the  words  of  the  enacting  cLause  are  broader  than  the 
title,  the  former  must  govern. '^  This  rule,  however, 
under  constitutions  containing  a  provision  such  as  above 
indicated,  is  subject  to  an  apparent  exception.  The 
subject  matter  being  required  to  be  expressed  in  the 
title,  if  the  language  of  the  act  were  broader  than  the  fair 
meaning  of  the  words  of  the  title,  but  could  be,  reasonably 
and  without  doing  positive  violence  to  the  letter,  so  construed 
as  to  bring  it  within  the  title,  thus  avoiding  the  failure  of 
the  entire  statute  or  some  of  its  provisions  as  unconstitu- 
tional, it  probably  would,  upon  a  principle  to  be  hereafter 
examined,'^  be  so  construed.  In  that  way  it  may  in  a  cer- 
tain sense,  become  practically  true,  that,  under  such  a  con- 
stitutional  provision,  the  title   may   control   the  statute  or 

°  Meyer  v.  West.  Car  Co.,  103  "  Re  Boston,  etc.  Co.,  supra;  U. 

U   S    1.  S.  V.  Fislier,  2  Cranch,  386. 

s  Pa.  R.  R.  Co.  V.  Riblet,  66  Pa.  '^  Hadden  v.  Collector,  5  Wall. 

St.   164;  Eby's  App.,  70  Id.   311  ;  107;  Flynii  v.  Abbolt,  10  Cal.  358  ; 

Halderniaivs  App.,  104  Id.  251.  State  v.  Cazeau,  8  La   An.  114. 

'  Ibid.,  at  p.  259.  ^^  U.   S.  v.  Brlggs,  9  How.   351  ; 

*  Eby's  App.,  supra,  at  p.  314.  and  see  S.  P.  as  to  a  statute   not 

9  Re  Boston  Min.,  etc.,  Co.,    51  penal  :  Com'th  v.  Slifer,  53  Pa.  St.. 

Cal,  624.  71. 

"*  Halderman's  App.,  ubi  supra.  '■*  See  post,  §§  178,  180. 


76  MARGINAL    NOTES.  [§  00 

some  portion  of  it ;"  i.  e.,  it  may  narrow  it.  Where,  how- 
ever, the  title  is  so  defective  as  to  render  the  act  void,  it 
wonld  seem  to  be  scarce!}'  accurate  to  say  that  the  title  con- 
trols the  statute  or  its  construction  ;  and  so,  where  a  portion 
of  the  statute  consisting  of  a  second  subject,  not  expressed 
in  the  title,  should  have  to  be  rejected  as  unconstitutional. 
Tn  sucli  cases,  in  the  iirst  the  whole  statute,  in  the  second 
that  portion  not  covered  by  the  title,  would  simply  be  void, 
and  couid  never,  therefore,  become,  properly  speaking,  the 
subject  of  judicial  construction."  But,  there  being  no  dif- 
ficulty as  to  the  sufficiency  of  the  title  to  comprehend  the 
subject  matter  of  a  statute,  it  is  said,  that,  whilst  the  title 
alone  is  not  to  be  regarded  as  a  safe  expositor  of  the  law,  it 
may  be  presumed,  in  the  absence  of  plain  contradiction  by 
the  terms  of  the  body  of  the  act,  to  express  its  true  intent  and 
meaning."  In  case  of  such  plain  contradiction,  it  is  infera- 
ble from  the  decisions,  that  the  construction  of  the  language 
of  the  act  would  have  to  remain  unaided  by  the  title,  even 
though  the  result  be  the  avoidance  of  the  statute,  or  some 
portion  of  it,  on  the  ground  of  unconstitutionality. 

§  60.  Marginal  Notes. — [The  uuu'ginal  notes  printed  by 
the  official  printer  in  connection  with  the  several  sections  of 
a  statute,  have  been  held  to  form  no  part  of  those  sections, 
or  of  the  statute,  so  as  to  throw  light  upon  the  question 
of  construction.'*  Nor,  when  they  appear  on  the  rolls  of 
the  Legislature  itself,  as,  since  1849,  they  do  in  England, 
are  they  to  be  regarded  as  forming  part  of  the  enactment, 
or  as  binding  as  an  explanation  or  as  a  construction  of  the 
same.'"     They  are  merely  abstracts  of  the  clauses,    intended 

'*  See  Nazro  v.  Merchants',  etc.  such   marginal  notes  now  formed 

Co.,  14  Wis.  295;  Dodd  v.  State,  part  of  the  act  and  mii^ht  be  used 

18  Ind.  56.  for  tiie  purpose  of  interpreting  it, 

"  See  ante,  §  1,  note  1.  Jessel,  M.    It.,  saying,   af  p.   525, 

"  Connecticut,  &c.,  Ins.  Co.  v.  that,  within  his  knowledge,  they 

Albert,  8!)  Mo.  181.  had  been  tlie  subject  of  motion  and 

'>*  Clai^don  v.  Green,  L.  R.  2  C.  amendment  ;      a      statement      at 

P.  521  ;'  Birlwhistle   v.   Vardill,  7  variance  with  that   of   Baggallav, 

CI.  &  Fin.  8U5,  929.  L.  J.,  in  Atty-Gen.  v.  G.  E.  K.  R. 

•'  Atty-Gen.   v.  G.  E.  R.  R.  Co.,  Co.,  supra,  at   p.  4GI  :    "I    never 

L.    R.   n  Ch.  1).  449  ;   Sutton   v.  knew  an  amendment  .set  down  or 

Sutton,  L.  R.  22  Ch.  D.  51:5,  over-  discussed  upon  the  marginal  note 

ruling  In  le  Venour,  L.  R.  2  Ch.  to  a  clause.     The  House  of  Com- 

D.  522,  where  It  was  intimated  that  mons    never   has   anything   to   dc 


§  61j  PUNCTOATION.  7T 

to  catch  the  eye,"  and  to  make  the  task  of  reference  easier 
and  more  expeditions."  But  it  was  said,  in  one  case,  that, 
where  a  marginal  note,  instead  of  being  a  mere  abstract  of  a 
section,  gave  express  directions  as  to  the  form  of  an  order 
which  it  accompanied,  and  was  on  the  margin  of  the  legis- 
lative roll,  it  was  to  be  held  a  part  of  the  statute,"  and  the 
effect  of  mai-ginal  references,  in  a  revision  to  the  original 
acts  has  already  been  noticed." 

§  61.  Punctuation. — [The  effect  of  punctuation  in  a  statute,, 
as  an  element  in  its  construction,  is  not  determined  by  the 
courts  with  absolute  uniformity.  It  has  been  repeatedly 
asserted  that  punctuation  is  no  part  of  a  statute  f*  that  there 
is  no  punctuation  in  it  which  ought  to  control  its  interpre- 
tation ;"  that  it  is  not  to  be  regarded  in  construction  f  or, 
at  any  rate,  may  be  properly  disregarded,"  and  that  an 
erroneous  punctuation  of  a  statute,  in  printing  it,  ought  not 
to  be  allowed  an  effect  which  v/ould  lead  to  an  absurdity.^* 
Hence,  a  comma  may  be  transferred  from  after  a  word  to 
before  it,  to  effectuate  the  obvious  intent  of  the  statute  f' 
or  carried  back  several  words,  in  order  to  prevent  the  sacri- 
fice of  a  material  and  significant  word  f''  or  inserted  for  a 
similar  purpose,  as  in  the  phrase  "  stolen  or  taken  by 
robbers.  "=" 

[On  the  other  hand,  it  has  been  said,  that,  whilst  not  a 
decisive  test  of  construction,  the  punctuation  in  a  statute 
may  yet  be  some  indication  of  its  meaning  ;^^  and  that  that 
meaning  may  often  be  determined  from  the  punctuation." 

with  the  amendment  of  the  margi-  2'  Martin  v.  Gleason,  139   IMass. 

naluote.     I  never  knew  a  marginal  183;   Albright   v.  Payne,  43  Ohio 

note  considered  by  the  House  of  St.  8  ;    Shriedley   v.    State,  23  Id. 

Commons."  130  ;  Hamilton  v.  The  R.  B.  Hamil- 

20  Ibid.,  at  p.  465.  ton,  16  Id.  428. 

"'  Wilb.,  Stat.  Law,  p.  294.  ^s  Randolph   v.    Bayne,  44   Cal. 

22  R.  V.  Milverton,  5  A.  «&  E.  841.  366. 

23  See   ante,  §  51  ;  Nicholson  v.  29  Albright  v.  Payne,  supra. 
Mobile,   etc.,  R.   R.  Co.,   49     Ala.  20  Cm'th  v.  Sbopp,  supra. 

205.  ="  Shriedley  v.  State,  supra  ;  and 

2*  Hammock  v.    Loan   Co.,    105  compare   ante,    §  33,  McPhail  v. 

U.  S.  77.  Gerry,  55  Vt.  174. 

25Gyger's  Est.,    65  Pa.  St.  311,  ^'  U.  S-  v.    Three  R.  R.   Cars,  1 

812  ;  Com'th   v.  Shopp,  1    Woodw.  Abb.  U.  S.  196.     And  See  Albright 

(Pa.)  123,  129.     See  also  U.  S.  v.  v.  Payne,  43  Ohio  St.  8. 

Isham,  17  Wall.  496,  502.  »=*  Squires'  Case,  12  Abb.  Pr.  (N. 

26  Cashing  v.  Worrick,  9   Gray  Y.)  38. 

(Mass.)  382. 


7S 


PREAMBLE. 


[§62 


Accordingly,  where  ;ui  act  allowed  certain  fees  to  witnesses 
"  tor  each  day's  attendance  in  court,  or  before  any  otiicer 
j)ur.<uant  to  law,"  it  was  held  that  the  j)uiictnation  discon- 
nected the  latter  phrase,  "  or  i)et'ore  any  otiicer,"  etc.,  from 
the  preceding  portion  of  the  clause  I'elating  to  attendance 
in  the  courts,  and  the  former  was,  therefore,  deemed  to 
uppl}'  to  attendance  before  commissioners  only."] 

§  62.  Preamble. — The  })reamble  of  a  statute  has  been  said 
to  be  a  good  means  to  find  out  its  meaning,  and,  as  it  were, 
a  key  to  the  understanding  of  it  ;'^ and  as  it  usually  states, 
or  professes  to  state,  the  general  object  and  intention  of  the 
Legislature  in  passing  the  enactment,  it  may  legitimately  be 
consulted  for  the  purpose  of  solving  any  ambiguity,  or  of 
fixing  the  meaning  of  words  which  may  have  more  than  one, 
or  of  keeping  the  effect  of  the  Act  within  its  real  scope, 
whenever  the  enacting  part  is  in  any  of  these  respects  open 
to  doubt,  {a).  Thus,  in  26  Geo.  3,  c.  107,  s.  3,  which 
empowered  every  person  who  had  served  in  the  militia  and 
was  married,  to  set  up  in  trade  in  a  corporate  town,  as  freely 
as  soldiers  might  under  an  earli(ir  enactment,  and  declared 
that  ''  no  such  militiaman  "  should  be  removeable  from  the 
town  until  he  became  chargeable, — it  being  open  to  doubt 
whether  this  expression  included  all  married  militiamen,  or 


^  [Ciimmings  v.  Akron  Cement, 
etc..  Co.,  ()  Bl.ilchf.  509. J  For- 
inerh%  the  bill  wus,  at  one  of  its 
stages,  engrossed  without  ])unc- 
tiiation  on  parchment  :  1  Bl.  Com. 
183  ;  but  as  neither  the  mar- 
ginal notes  nor  the  punctuation  ap- 
peared on  the  roll,  they  formed  no 
parts  of  the  Act  :  Barrington  01)s. 
on  Stat.  394  ;  sec;  Barrow  v.  Wad- 
kin,  24  Beav.  327  ;  and  the  judg- 
ment of  Maule,  J.,  in  R.  v.  Oldham, 
21  L.  J.  M.  C.  134,  2  Den.  473. 
This  practice  was  discontinued  in 
1849,  since  which  time  the  record 
of  the  statutes  is  a  copy  printed  on 
vellum  by  the  Queen's  printer  : 
May,  Pari.  P.  Ch.  18  ;  and  l)olh 
marginal  notes  and  punctuation 
now  appear  on  tlie  rolls  of  Parlia- 
ment. But  whether  they  are  now 
to  be  taken  as  parts  of  tlie  statute 
is  a  question  wliich  has  been  raised 


but  not  decided  :  Semble  that  they 
are  not  ;  j)er  Willes,  J.,  in  Claydon 
V.  Green,  L.  Pt.  3  C.  P.  521,  and 
per  .James,  L.  J.,  in  Atty.-Genl.  v. 
G.  E.  R.  Co.,  11  Ch.  D.  465  ;  contra 
per  Jessel,  M.  R.,  in  Re  Venour,  2 
Ch.  D.  525  [see  ante,  note  19]  ;  and 
see  R.  V.  Milverton,  5  A.  &  E.  841. 

The  indorsement  by  the  Clerk  of 
the  Parliaments  of  the  date  of  the 
passing  of  the  Act  is  part  of  it  since 
1793  :  33  Geo.  3.  c.  13. 

35  Co.  Litt.  79a  ;  4  Inst.  330  ; 
'Dyer,  C.  J.,  in  Stowell  v.  Foucli, 
Plowd. ,  at  11.  ;!()!)  :  "  A  key  to  open 
the  minds  of  the  makers  of  the  act, 
and  the  mischief  wliich  Ihey  inten- 
ded to  redress." 

{(()  Bae.  Ab.  Slat.  I.  2  :  llaltou 
V.  Cove,  1  B.  »fc  Ad.  558  ;  Beard  v. 
Rowan,  9  Peters,  317  ;  The  People 
V.  Uiica  Insurance  Co.,  15  Johns. 
N.  Y.  Rep.  389. 


§  62]  PREAMBLE.  T9 

only  married  militiamen  wlio  had  set  up  in  trade  in  towns, 
the  preamble  of  the  earlier  Act  fixed  the  latter  as  the  true 
•construction,  as  it  state<l  that  the  mischief  to  he  remedied 
was  the  state  of  the  law  which  prevented  soldiers  from  set- 
ting up  in  trade  in  corporate  towns  {a).  The  18th  sect,  of 
the  12  &  13  Vict.  c.  45,  which  enacted  that  "•  any  order"  of 
Quarter  Sessions  might  be  removed  to  the  Queen's  Bench 
for  enforcement,  was  similarly  confined  to  orders  in  appeal 
<jases,  by  the  preamble  which,  in  reciting  that  it  was  expe- 
dient that  the  law  should  be  made  uniform  in  cases  of  appeal, 
showed  the  limited  scope  of  the  Act  (h).  Under  a  statute 
which  enacted  that  when  a  person  came  into  the  occupation 
of  premises  for  which  the  preceding  tenant  was  rated  to  the 
poor,  the  old  and  new  occupants  should  be  liable  to  the  rate 
in  proportion  to  the  time  of  their  occupation,  the  question 
arose  whether  either,  and  if  so,  which  of  them,  was  to  pay 
for  the  interval  between  the  removal  and  the  beginning  of 
the  second  occupation  ;  and  this  was  determined  by  the 
preamble,  which,  by  reciting  that  in  consequence  of  rated 
occupiers  removing  without  paying  their  rates,  and  other 
persons  entering  and  occupying  the  premises  for  a  part  of 
the  year,  great  sums  were  lost  to  the  parish,  showed  that  the 
object  of  the  Act  was  not  to  make  an  equitable  adjustment 
between  the  two  occupiers,  but  to  protect  the  parish  from 
loss.  It  was  therefore  held  that  the  rates  were  payable  for 
the  interval  between  the  two  occupations,  and  that  the  burden 
fell  on  the  outgoing  tenant,  who  was  formerly  liable  under 
the  Act  of  Elizabeth  for  the  whole  rate  (<?).  An  Act  which 
made  it  penal  for  a  publican  to  allow  bad  characters  to 
^'assemble  and  meet  together"  in  his  house,  would  not  be 
broken  by  his  permitting  such  persons  to  enter  for  taking 
refreshment,  and  remaining  there  as  long  as  was  reasonably 
necessary  for  that  purpose  ;  when  the  preamble  showed  that 
the  object  in  view  w\as  the  repression  of  disorderly  conduct, 
not  the  absolute  denial  of  all  hospitality  to  persons  of  bad 
character  {d).     In  the  25  Geo.  2,  c.  G,  wliich  recited  in  the 

(a)  R.  V.  Gwenop,  3  T.  R.  13:1  by  33  &  33  Vict.    c.    41,   s.    IG  ; 

(i^)  R.  T   oatemau,  8  E.  &  B.  584,  Edwai'ds  v.  Rusholme,  L.  R.  4  Q. 

27  L.  J.  95.  B.  554. 

(c)  17  Geo.  2,  c.  38,  s.  12,  repealed  (d)  23  Vict.  c.  27,  s.  32  ;  Greig  v. 


^30  PKEAiLBLE.  [§  65 

preamble  a  doubt  as  to  who  were  legal  witnesses  to  a  will  of 
fand,  and  enacted  that  legatees  and  devisees  who  attested 
'  any  will"  should  be  good  witnesses,  but  that  the  bequests 
and  devises  to  them  should  be  void,  the  enacting  part  was 
limited  by  the  preamble  to  wills  of  land.  AV' ills  of  person- 
alty, at  that  time,  needed  no  attestation  ;  and  the  principle 
of  cessante  ratione  cessat  lex,  as  well  as  the  injustice  of 
depriving  persons  of  property,  making  it  reasonably  doubt- 
ful whether  the  Legislature  had  used  the  expression  ''any 
will"  in  its  full  and  unrestricted  meaning,  the  preamble  was 
legitimately  invoked  to  determine  the  scope  of  the  enact- 
ment {a).  [And  in  a  still  more  recent  case,  it  was  said  that 
the  court  should  give  effect  to  the  preamble  to  this  extent, 
namely,  that  it  shows  what  the  Legislature  is  intending ; 
and  if  the  words  of  the  enactment  have  a  meaning  which 
does  not  go  beyond  the  preamble,  or  which  may  come  up  to 
the  preamble,  in  either  case  that  meaning  should  be  preferred 
to  one  showing  an  intention  of  the  Legislature  which  would 
not  answer  the  whole  purposes  of  the  preamble  or  which 
would  go  beyond  them.^° 

§63.  [Li  substantial  accord  with  the  English  cases,  the 
rule  is  thoroughly  recognized  in  this  country,  that^ 
whilst  the  preamble  is  not  a  part  of  the  statute,  it  may 
assist  in  ascertaining  the  true  intent  and  meaning  of  the 
Legislature,  and  for  that  purpose,  where  the  language  is 
ambiguous,  admitting  of  a  larger  or  more  restricted 
meaning,  may  be  properly  referred  to  as  an  aid  in  deter- 
mining" which    sense   was    intended  by  the    Legislature."] 

Bendeno.  E.  B.  &  E.  133,  27  L.  J.  Blackburn,     adding  :     "To     that 

M.  C.  294.     See  Belasco  v.  Han-  extent  only  is  the  preamble  mate- 

nant,  3  Best  &  S.  13,  31  L.  J.  M.  rial." 

C.  225.  ^^  See  U.  S.  v.  Webster,  Dav.  (2 

(a)  Emanuel  V.  Constable,  3  Russ.  Ware)  38;   Habn  v.    ISulmon,    20 

52G,  overruling  Lees  v.  Summer-  Fed.  Rep.    301  ;  Lalhrop   v.    Ins. 

gill',  17  Ves.  508  ;  Brett  v-  Brett,  3  Comm'rs,  4Ins.  L.  J.  829  ;  Jackson 

Addams  219.     See  other  instances  v.  Gilchrist,  15  Johns.  (N.  Y.)  89  ; 

in   Wethered  v.  Calcutt,  5   Scott,  Edwards  v.  Pope,  3  111.  4G5  ;  Bart- 

N.  R.  409  ;  Doe  v.  Roe,  1  Dovvl.  lett  v.  Morris,  9  Port.  (.Via.)  2GG  ; 

547  ;  Carr  v.  Royal  Exchange  Ass.  James  v.  Dubois,  16  N.  J.  L.  285  ; 

Co.,  5  Best  &  S.  941.  31  L.  J.  Q.  Erie,  &c.,  R.   R.  Co.  v.  Casey.  2G 

B.  93  ;  lie  Masters,  33  L.  J.  Q.  B.  Pa.  St.  287  ;  Com'th  v.  Marshall, 

146.  69  id.  328  ;  York  Co.  v.   Craftou, 

26  West  Ham  Overseers  v.  Ile<-,  100  Id.    619;   Fowler  v.    State,  5 

L.  R.,  8  App.  Cas.  387,  per  Lord  Day  (Coun.)  81  ;  Laidler  v.  Young, 


§  Go]  PREAMBLE.  81 

So,  as  an  Act  wliich  authorized  aliens  who  *'sliall  have 
been  resident "  in  tlie  country  for  two  years,  to  liold  land, 
might  either  be  limited  to  jDcrsons  who  had  so  resided  before 
the  passing  of  the  Act,  or  extend  to  those  who  should  at 
any  time  reside  for  the  required  time,  the  preamble  was- 
resorted  to  in  order  to  determine  which  of  the  two  mean- 
ings was  the  most  agreeable  to  the  policy  and  object  of  the 
Act ;  and  as  it  recited  that  aliens  were  prevented  by  law 
from  holding  lands  in  the  State  and  it  was  the  interest  of 
the  State  that  such  prohibitions  should  be  done  away  with, 
it  showed  that  the  former  construction  was  less  adapted  to 
give  effect  to  the  intention  of  the  Legislature  than  the 
latter  (a).  [And  an  act,  the  preamble  of  which  declared  its 
pui-pose  to  be  the  creation  of  highways,  and  the  body  of 
which  declared  a  certain  stream  a  public  stream  or  highway 
for  the  passage  of  boats,  or  rafts,  was  held  to  cover  the  case 
of  a  number  of  logs,  not  fastened  together,  but  floated  in 
the  stream  contiguous  to  one  another,  the  term  'raft'  being 
capable,  according  to  recognized  authorities  of  embracing 
such  a  body  of  lumber,  though  that  was  not  its  usual  accep- 
tation, and  the  preamble  showing  that  the  latter  would  be  a 
more  restricted  interpretation  than  was  intended  by  the  stat- 
ute.'* An  opposite  effect  was  derived  from  the  considera- 
tion of  the  preamble  to  an  act  which  declared  that  "in  all 
cases  of  criminal  prosecutions,  where  by  law  the  county  of 
y.  is  now  liable  to  pay  the  costs  of  prosecution,  including 
surety  of  the  peace  cases,  after  theconviction  of  the  defend- 
ant, upon  his  discharge  according  to  law  without  payment 
of  costs,  the  said  county  shall  be  immediately  liable  to  pay 
the  costs,"  etc.  The  preamble  recited  the  inconvenience 
arising  to  officers  and  witnesses  from  "long  delay  in  recov- 
ering their  fees,"  and  the  hardship  occasioned  thereby,  "for 

Har.  &  J.  (Md.)  69  ;  Canal  Co.  v.  301.    [An  alien  being  by  the  law  of 

R.  R.  Co.,4Gill&  J.(Md.)l;  Lucas  Indiana,  ineligible  as  a  juror,  the 

V.  McBlair.  12  Id.  1  ;  Nichols  v.  term  is  held  to  apply  to  one  not  ji 

Wills,  Sneed  (Ky.)  301  ;  Clark  v.  citizen  of  that  state,  so  that  a  citi- 

Bynum,    3   McCord  (S.    C.)    298;  zen  of  Indiana  is  eligible,  though 

Blue  V.   McDuffie,  1  Busb.  (N.  C.)  he  be  not  a  citizen  of  the  U.  S.  : 

131.     And   see  cases    cited    ante,  McDonel  v.  State,  90  lud.  320.] 
§  G2.  note  b,  p.  78.  38  Dcddrick  v.  Wood,  15  Pa.  St. 

(a)  Beard  v.   Rowan,   9  Peters,  9. 


82  PREAMBLE.  [§  64r 

remedy  wlicreof,"  the  statute  was  enacted.  It  was  accord- 
ingly held  to  impose  no  Jiability  upon  the  county  to  pay 
costs  which  it  was  not  before  required  to  pay,  but  only 
to  require  immediate  payment  of  those  costs  which  the 
•county  was  theretofore  liable  to  pay  upon  the  discharge 
of  the  convict,  and  consequently  not  to  repeal  the  general 
law,  which,  in  surety  of  the  peace  cases,  left  it  to  the  court 
to  order  payment  of  cost  by  the  prosecutor  or  defendant,  or 
by  both  jointly  or  by  the  county.^" 

[Tlie  preamble  may  also  be  referred  to,  to  identify  the  sub- 
ject matter  of  the  enactment  ;"  especially  when  referred  to 
in  the  enacting  clause  for  that  purpose."  So,  also,  to  explain 
the  motive  and  meaning  of  the  Legislature." 

§  Gi.  [The  same  decisions,  however,  which  establish  the 
doctrine  above  stated  as  to  the  admissibility  of  the  preamble 
in  the  construction  of  a  doubtful  provision  in  a  statute,  also 
declare,  that,  when  the  meaning  of  the  enacting  part  is  clear 
and  free  from  ambiquity,  it  cannot  be  controlled,  with  either 
enlarging  or  restraining  effect,  by  the  preamble."  And  this, 
again,  is  in  accordance  with  the  English  rule,  that]  the  pre- 
amble cannot  either  restrict  or  extend  the  enacting  part, 
when  the  language  of  the  latter  is  plain,  and  not  open  to 
doubt  either  as  to  its  meaning  or  its  scope  {a).  It  is  not 
unusual  to  find  that  the  enacting  part  is  not  exactly  co-ex- 
tensive with  the  preamble.  In  many  Acts  of  Parliament, 
although  a  particular  mischief  is  recited,  the  legislative  pro- 
visions extend  beyond  it.  The  preamble  is  often  no  more 
than  a  recital  of  some  of  the  inconveriiences,  and  does  not 
exclude  any  others   for   which    a  remedy    is   given  by  the 

39  York  Co.  V.  Grafton,  100  Pa.  B.  Mon.  (Kv.)  2G2  ;   Eastman  v. 

St.  G19.  McAlpin,  1  Ga.  157. 

■">  Com'th  V.    Marshall,   69  Pa.  (a)  4  Inst.  39  ;  per  Lord  Mansfield 

St.  328.  in  Patleson  v.  Banks,  Cowp    543, 

41  lb.  and  Perkins  v.  Sewell,    1    W.  Bl. 

■42  iij.  659  ;  jvr  Dainpier,  ,J.,  in  Trucman 

'*3   Sec,    in    addition     to     cases  v.  Lambert.  4  M.  &  S.  239  ;  Wright 

already  cited  :  Adams  v.  Wood,  2  v.  Nutall,  10  B.  &  C.  492  ;  Cres- 

Crancli,  336;  Kirk  v.  Dean,  2Binn.  pigny  v.  Wittenoom,  4  T.  R.  793. 

(Pa.)   341,    346  ;    Seidenbendcr   v.  fer  Buller,  J.  ;  Sailer's  Co.  v.  .lay, 

Charles,  4  S.  «&  R.  (Pa.)  151  ;  Kent  3  Q.  B.  109  ;  Wilmot  v.  Rose,  3  E. 

V.    Somervill.  7   Gill  &   J.    (Md.)  &  B.   563  ;  Copland  v.   Davis,  L. 

•265  :   Covington  v.    McNickle.  18  R.  5  II.  L.  358  ;  Benlley  v.  Rothe- 

ram,  4  Ch.  D.  588. 


§  G5j  PREAMBLE.  83 

Statute  (a).  The  evil  recited  is  but  the  motive  for  legisla- 
tion ;  the  remedy  may  both  consistently  and  wisely  be 
extended  beyond  the  cure  of  that  evil  (b)  ;  and  if  on  review 
of  the  whole  Act  a  wider  intention  than  that  expressed  in 
the  preamble  appears  to  be  the  real  one,  effect  is  to  be 
given  to  it  notwithstanding  the  less  extensive  import  of  the 
preamble  (c).  Thus  the  4  &  5  Ph.  &  M.  c.  8,  made  the 
abduction  of  all  girls  under  sixteen  penal,  thougli  the  pre- 
amble referred  only  to  heiresses  and  other  girls  with  for- 
tunes {d).  So,  the  13  Eliz.  c.  10,  which  makes  void  all 
leases,  gifts,  grants  and  conveyances  of  estates,  made  by  any 
dean  and  chapter,  or  master  of  an  hospital,  of  any  heredit- 
aments, parcel  of  the  possessions  of  the  cathedral  church 
or  hospital,  except  for  the  limited  term  allowed  by  the  Act, 
was  not  narrowed  or  controlled  by  a  preamble  which  recited 
only  that  divers  ecclesiastical' persons,  endowed  of  ancient 
palaces,  mansions  and  buildings  belonging  to  their  benefices, 
not  only  suffered  them  to  go  to  decay,  but  converted  the 
materials  to  their  own  benefit,  and  conveyed  away  their 
goods  and  chattels  to  defeat  their  successors'  claims  for 
dilapidations  (e). 

§  65.  The  3  Jac.  1,  c.  10,  which,  after  reciting  that  the 
King's  subjects  were  charged  with  conveying  "felons  and 
other  malefactors  and  offenders  against  the  law,"  to  jail, 
punishable  by  imprisonment  there,  enacted  that  "every 
person  "  committed  to  the  county  jail  by  a  justice  "for  any 
offense  or  misdemeanor,"  should  bear  his  own  charges  of 
conveyance,  if  he  had  property,  and  that  if  he  had  not,  they 
should  be  borne  by  the  ])arish  where  he  was  apprehended, 
was  held  not  to  be  confined  by  the  preamble  to  offenders 
against  the  ordinary  law,  but  to  apply  to  deserters  from  the 
army  (/).  So,  the  preamble  of  the  22  Geo.  3,  c.  75  (g), 
which  recited  the   mischief  of  granting  colonial  offices  to 

(a)  Per   Fortescue,    J.,  in  R.  v,         (d)  Co.  Litt.  88  b.  n.  14. 
Athos,  8  Mod.  144.  (e)  York  v.    Middlesborough,    3 

(b)  Per  Lord  Denman,  inFellowes     Y.  &  J.  196,  214. 

V.  Clay,  4  Q.  B.  349.  (J)  R.  v.  Pierce,  3  M.  &  S.  62. 

(c)  Per  Lord  Teuterden,  in  Doe  {g)  Commonly       attributed       to 
V.  Brandling,  7  B.  &  C.  660  ;   and  Burke,  but  really  an  Act  of  Lord 
see  Copeman  v.  Gallant,  1  P.  Wms.  Shelburne's  ;  see  Shelb.  Life,  337. 
330. 


84  pin:AMBLE.  [§  Gai 

persons  who  remained  in  England,  and  discharged  the  duties 
of  tlicir  offices  by  deputy,  was  not  suffered  to  exclude  judi- 
cial offices  from  tiie  general  enacting  part,  which  authorised 
tlie  Governor  and  Council  to  remove  "any"  ofiicc-holder 
for  misconduct;  although  the  mention  of  delegation  in  the 
preamble  showed  that  the  judicial  othce  was  not  there  in 
contemplation  (a). 

The  2  &  3  W.  4,  c.  100,  which  after  reciting  that  the 
expense  and  inconvenience  of  suits  for  the  recovery  of 
tithes  ought  to  be  prevented  by  shortening  the  time  required 
for  the  valid  establishment  of  claims  to  exemption  from 
titlies,  enacted  that  when  a  claim  to  tithes  was  made  bj^  a 
layman,  a  claim  to  exemption  should  be  deemed  conclusively 
established  by  proof  of  non-payment  for  sixty  years,  gave 
rise  to  a  celebrated  legal  controversy,  in  which  the  effect 
of  the  preamble  was  much  considered.  Before  the  passing 
of  that  Act,  no  layman  could  establish  exem[)tion  fi'om 
tithes,  cxce])t  by  proving  that  the  land  in  respect  of  which 
they  were  claimed  had  formerly  belonged  to  one  of  the 
great  Monasteries,  and  had  been  exempt  in  its  hands;  the 
latter  proposition  being  usually  estal)lished  by  such  evidence 
of  non-payment  in  modern  times  as  sufficed  for  founding 
the  inference  of  exemption.  It  was  held  by  some  of  the 
judges  (b),  that  the  enactment  was  contined  to  clainis  of 
this  kind  ;  aiid  the  preamble  was  invoked  in  support  of  this 
viev/.  Ijut  it  was  considered  by  others  {e),  and  finally 
decided  {d),  that  the  Act  applied  to  all  cases  whatsoever  ; 
and  that  upon  proof  of  non-payment  for  sixty  years,  the 
landowner  was  exempt,  whether  the  huid  had  ever  been 
monastic  or  not.  The  enactment  was  free  from  ambiguity, 
and  contained  no  flexible  expression  capable  of  different 
meanings  {e)  ;  while  the  preamble,  which  one  side  under- 
stood as  meaning  that  the  expense  and  inconvenience  of  the 
same  kind  of  suits  as  before  ought  to  be  prevented,  was 

(a)  Willis  V.  Gipps,  5  Moo.  P.  C.  B.,  Parke,  Alderson,  and  Piatt, 
379.  see  p.  388.  BB. 

(b)  Wigiam,    V.    C,    Tindal,  C.         {<!)  By  Lord  Cottenham. 

J.,  Crossweli,  J.,  Pattesou,  J.,  and  (c)  Per     Lord      Cottenliam,     \a 

Coleridge,  J.  Salkeld   v.  Johnson,    1  Mac.  &  G. 

{r)  Lord       Denman,      Williams,  264. 
Collmun,    Erie,    JJ.,  Pollock,     C. 


;§  65]  PREAMBLE.  85 

thought  on  the  other  to  mean  that  expensive  and  inconve- 
nient suits  ought  to  be  prevented  in  all  cases  ;  and  that  this 
was  best  affected  by  giving  the  more  easy  method  of  estab- 
lishing exemptions  by  simple  proof  of  non-payment  for  a 
certain  time  {a). 

Where  the  preamble  is  found  more  extensive  than  the 
enacting  part,  it  is  equally  inefficacious  to  control  the  effect 
of  the  latter,  when  otherwise  free  from  doubt.  For 
instance,  the  Act  of  3  W.  &  M.  c.  14,  s.  3  {h),  which  gave 
creditors  an  action  of  "  debt "  against  the  devisees  of  their 
debtor  was  held  not  to  authorise  an  action  for  a  breach  of 
covenant,  or  for  the  recovery  of  money  not  strictly  a 
^'  debt "  {a) ;  though  the  preamble  recited  that  it  was  not 
just  that  by  the  contrivance  of  debtors  their  creditors  should 
be  defrauded  of  their  debts,  but  that  it  had  often  happened 
that  after  binding  themselves  by  bonds  "  and  other  special- 
ties" they  devised  away  their  property.  The  mention,  it 
was  observed,  of  the  action  of  debt  in  the  enacting  part  was 
almost  an  express  exclusion  of  every  other  {d).  An  Act, 
which  made  it  penal  to  dye  seeds  so  as  to  give  them  the 
appearance  of  seeds  of  "  another  kind,"  could  not  be 
extended  to  similar  manipulations  of  old  or  inferior  seeds, 
to  make  them  appear  as  new  of  the  same  species,  by  a 
recital  that  the  practice  of  adulterating  seeds  in  fraud  of  the 
Queen's  subjects,  and  the  detriment  of  agriculture  required 
repression  (e).  An  Act  which  required  the  trustees  of  a 
turnpike  trust  to  apply  the  monies  which  they  received, 
first,  in  paying  "any  interest  which  might  from  time  to 
time  be  owing,"  next,  in  keeping  the  road  in  repair,  and 
finally,  in  paying  off  the  principal  sums  due  by  the  trust, 
was  held  not  to  authorise  the  payment  of  arrears  of  inter- 
est ;  although  this  enactment  was  prefaced  by  a  preamble 
which  recited  that  arrears  of  interest  as  well  as  principal 
sums  were  due  by  the  trust,  and  could  not  be  paid  off  unless 

(a)  See   Salkeld    v.    Jolinson,    1  839  ;    Jenkins   v.    Briant,    6   Sim. 

Hare,  IDG.  1  Mac.  &  G.  243,  Fel-  (530  ;  I\Iorse  v.  Tucker.  5  Hare,  79. 

lowcs.  V.  Clav,  4Q.  B.  313.  ((?)  Per  Lord  Ellenborough,?  East, 

{b)  Amended  by  1  W.  4,  c.  47,  s.  135. 

3.  (e)  Francis  v.   Maas,  3   Q.  B.  D. 

(c)  Wilson    V.    Knublcy.  7   East,  341. 
128  ;  Farley  v.  Bryant,  3  A.  &,  E. 


86  PREAMBLE.  [§  6(> 

further  powers  were  granted  (a).  Such  an  extension  of  the 
Act,  however,  would  have  required  very  clear  words,  since 
it  would  have  had  the  effect  of  throwing  on  the  ratepayers 
of  one  year  a  burden  properly  belonging  to  those  of 
another  {b). 

§  66.  It  has  been  sometimes  said  that  the  preamble  may 
extend,  but  cannot  restrain  the  enacting  part  of  a  statute 
(c).  But  it  would  seem  difficult  to  support  this  proposition 
{d).  Several  of  the  cases  above  cited  nnght  be  referred  to 
as  instances  of  a  restricted  meaning  having  been  judicially 
given  to  an  enactment  by  its  preamble  (e).  It  could  hardly 
be  doubted  that  a  statute  which,  in  general  terms,  made  it 
felony  to  alter  a  bill  of  exchange,  would  be  restrained  to 
fradnlcnt  alterations,  by  a  ])reamble  which  recited  that  it  was 
desirable  to  suppress  cheats  and  frauds  effected  by  altering 
bills  (_/).  The  function  of  a  pi-eamble  is  to  explain  what  is 
ambiguous  in  the  enactment  {(/),  and  it  may  either  restrain 
as  well  as  extend  it  as  best  suits  the  intention.  [That  is, 
where  the  not  restraining  the  generality  of  the  enacting 
clause  will  be  attended  with  an  inconvenience  or  particular 
mischief,  it  shall  be  restrained  by  the  preamble;  otherwise 
not."  But  the  preamble  of  general  purview  of  the  act  ought 
not  to  be  permitted  to  restrict  a  section  in  it,  where  the  same 
is  not  inconsistent  with  the  spirit  of  the  whole  enactment." 
It  is  scarcely  necessary  to  add  that  a  defective  or  repugnant 
preamble  cannot   nullify  or  render  void  or  inoperative  an 

(a)  ]Maiket  ILirborough  v.  Kettcr-  holme  ;  Emanuel  v.  Constnble  ; 
inir,  L.  R.  «  Q.  B.  ;]08.  Biyivn  v.  Cliild  ;   Salkckl  v.  Jnlin- 

(b)  See  §^  ;J45  et  seq.  son,  sop    pp.  79,  bO,  8"),  and  infra, 

(c)  K.  V.  Allios,  8  Mod.  144,  p.  8S.  See  also  per  Cur.,  R.  v. 
Coperaan  v.  Gallant,  1  P.  Wms.  Manchester,  7  E.  <&  B.  4")3,  i2G  L.  J. 
820  ;  per  Lord  Abin^^cr  in  "Walker  M.  C.  65  ;  IIuo;hes  v.  Choter  R. 
V.  Richardson,  2  M.  &  \V.  889;  Co.,  1  Dr.  &  Sm.  524;  Wigau  v. 
per  Willcs,  J.,  in  Ilayman  v.  Flew-  Fowler,  ciiod  1  Stark,  459. 

ker,  13  C.  B.  N.  S.  520,  32  L.  J.  (/)  R.  v.  Bigg,  3  P.  Wms.  434, 

0.    P.    132  ;   per  Tuiner,  L.  J.,  in  arg. 

Drummcnd   v.  Drummond,    Jj.  R.  (g)  Tlie  People  v.    Utica  Insur, 

2    Ch.  44  ;    per    Crowder.    J.,    in  Co.,  15  Johns.  N.  Y.  Rep.  389. 

Kearua  v.  Cordwainer's  Co.,  G  C.  *'■'   Seidcnbender    v.    Charles,    4 

B.  N.  S.  388.  Serg.  &  R.  (Pa.)  151.  IGG,  per  Gib- 

(d)  See  ex.  gr.,  75<»r  Parker,  C.  B.  son,  J.,  cit.  Ryall  v.  Rovvles,  1 
and   Lord    Ilardwieke  in  Ryall   v.  Vez.  365. 

Rolle,  1  Atk.  174.  182.  ^^  Sutton  v.  Sutton,  L.  R.  22  Ch. 

(e)  R.  V.   Gweuop,  3  T.  R.   133;      I).  521. 
R.   V.   Bateman  ;  Edwards  v.  Rus- 


§  67]  PREAMBLE.  87 

act  in  which  the  intention  of  the  lawmakers  is  clear  without 
aid  from  the  preamble." 

§  67.  Matters  Similar  to  Preamble.  Recitals.— [The  cases 
already  quoted  involved  the  effect  of  the  general  clause  pre- 
fixed to  the  whole  of  the  statute,  and  properly  called  the 
preamble.  Sometimes,  however,  a  similar  clause  is  pre- 
fixed to  one  section,  or  a  group  of  sections,  and  it  may  then 
be  distinguished  by  the  name  of  recital,"  the  effect  of  such 
recital  being  much  the  same  as  that  of  the  preamble."  Thus 
a  recital,  in  the  fifth  section  of  11  and  12  Yic.  c.  44,  tiiat  it 
would  conduce  to  the  administration  of  justice,  and  render 
more  effective  and  certain  the  performance  of  the  duties  of 
justices  and  give  them  protection  in  the  performance  of  the 
same,  if  some  simple  means  were  devised  whereby  the 
legality  of  any  act  done  by  such  justices  might  be  considered 
by  a  court  of  competent  jurisdiction,  and  such  justices 
enabled  and  directed  to  perform  it  without  risk  of  action, 
was  given  the  effect  of  restricting  the  enacting  clause,  provid- 
ing that  in  all  cases  where  a  justice  refused  to  do  "  any  act," 
an  application  might  be  made  for  a  rule  calling  upon  him 
to  show  cause  why  he  should  not  do  it,  in  such  manner,  that 
the  words  "  any  act  •'  must  be  taken  to  mean  any  act  against 
the  consequences  of  which  a  justice  needed  protection."* 
On  the  other  hand,]  the  5  Geo.  4,  c.  84,  s.  26,  which  after 
reciting  that  transported  felons  in  New  South  Wales,  after 
obtaining  remissions,  sometimes  "  by  their  industry  acquired 
property,  in  the  enjoyment  whereof  it  was  expedient  to 
protect  them,"  enacted  that  every  felon  who  received  such 
remission  should  be  entitled  to  sue  for  the  recovery  of  any 
property,  real  or  personal,  acquired  since  his  conviction,  was 
held  not  limited  by  the  preamble  to  property  acquired  by 
his  own  exertions,  but  applied  to  all  property  howsoever 
acquired,  as  for  instance  by  inheritance  {a). 

*''  Erie,  &c.  R.  R.  Co.  v.  Casey,  Earl  of  Shrewsbury  v.  Beazley,  19 

26  Pa.  St.  287.  C.  B.,  N.  S.,  at  p.  681. 

48  Wilb.,  p.  283.  ^»  R.  v.  Percy,  L.  R.  9  Q.  B.  64. 

49  The  same  figure  of  speech  See  also  Johusione  v.  Huddleston. 
(ante,  ^  62)  by  which  Lord  Coke  4  B.  &  C.  9:22,  930  ;  ^\\n\\  v.  jMoss- 
and  Chief  Justice  Dyer  described  man,  L.  R.  4  Ex.  292  ;  Wilb.,  pp. 
the  preamble  having  been  applied  282-285. 

to   such  recital   by  "Wi lies,  J.,  in         (a)  Gougb  v.  Davies,  2  K.  &  J. 

623,  25  L.  .3.  677. 


88  PKEAMBLE,    ETC.  [§§  G8,  G9 

§  68.  Reports  of  Committees.  Petitions.  Maps.— [All  effect 
similar  to  that  of  a  preatuhlc  was  given  to  the  report  of  a 
committee  presented  and  adopted  witlian  ordinance,  as  show- 
ini«;  its  reason,"  and  tlie  report  of  commissionei's  who  drafted 
the  Pennsylvania  act  of  8  April,  1833,  relating  to  wills,  was 
looked  at  by  the  Supreme  Court  of  that  State  in  construing 
the  sixth  section  of  the  act,  prescribing  the  mode  of  execu- 
tion, so  far  as  to  aid  in  ascertaining  its  "primary  and  jirinci- 
pal  object.'"" 

[Again,  in  the  case  of  an  act  authorizing  a  municipal  cor- 
poration to  niake  gi-ants  of  land  under  water,  the  preamble 
reciting  a  part  of  the  petition  of  the  city  government  upon 
whicli  the  act  was  based,  it  was  held  that  both  the  preamble 
and  the  ])etition  might  be  referred  to,  to  remove  ambiguities 
in  the  act  itself." 

[Where  a  map  was  used  by  the  Legislature  while  con- 
sidering an  act,  and  referred  to  in  the  act  itself,  it  was  lield 
to  be  thereby  incorporated  into  and  made  part  of  the  act."] 

§  69.  Chapter,  Section,  etc.,  Headings. — The  headings  pre- 
fixed to  sections  or  set  of  sections  in  some  modern  statutes 
are  regarded  as  preambles  to  those  sections  {a).  The  137tli 
section  of  the  Bankrupt  Act  of  1849,  which  enacted  that  a 
judge's  order  to  sign  judgment,  given  by  a  trader  defendant, 
should  be  void  if  not  filed,  was  held  limited  to  traders  who 
became  bankrupt,  by  the  heading  prefixed  to  the  section 
which  professed  to  enact  it  "  with  respect  to  transactions 
with  the  bankrupt"  {h).  A  wider  construction,  it  may  be 
added,  would  have  had  the  unjust   effect  of  enabling  the 

"  Muncipality  No.  2  v.  Moigmi,      disregarded,"  as  being    "not  only 
1  La.  An.  111.  of  no  value,"  but  "delusive  and 

52  Baker's  App.,  107  Pa.  81.,  ;5H1.      dangerous." 

388,  in  conjiuictloii,  however,  witli  ''^  People  v.  Dana,  22  Cal.  11. 

other  decisions  declaring  the  .'■anie  {<i)  See  ex.  gr.,  Br^'an  v.  Child,  5 

result.  Ex.  ;}G8  ;   Shrewsbury  v.  Beasle'y, 

53  Furman  v.  New  York,  5  19  C  B.  N.  S.  G51  ;  'E.  C.  K.  Co. 
Sandf.  (N.  Y.)  IG.  Compare.  r.  IMarriage,  'J  II.  E.  41  ;  Latham 
however,  ante,  g  33,  and  P>ank  of  }\  Lafone,  L.  l\.  2  Ex.  119:  Ham- 
Pa.  V.  Com'th,  1!)  Pa.  St.  1-14,  loG.  mersmilh  Ky.  Co.  v.  Brand,  L.  R, 
where  it  is  said  that  "evidence  of  4  II.  L.  171 ';  Lang  «.  Kerr,  3  App. 
public  embarrassment.  Die  procla-  .loG  ;  Com]).  Broadbent  v.  Imperial 
mation  and  message  of  tlie  Gover-  Gas  Co.,  7  De  G.,  IM.  &  G.  43G. 
nor,  the  journals  of  th(!  House  of  (^')  Bryan  v.  Child,  5  Ex.  368,  1 
lieprcsentatives,  and  the  report  of  L.  M.  &  P.  429. 

its  committees,  should  be  wholly 


g  GO]  CIIAl'TKK,     KTC,     IIKAUINGS.  89 

trader  wlio  li;id  not  become  haiikrnpt  to  set  aside  as  void  Ids 
own  deliberate  act,  an  intention  not  to  be  imputed  to  the 
Legislature,  if  the  language  admits  of  any  other  meaning  («). 
[The  effect,  however,  upon  the  interpretation  of  a  statute,  of 
its  division  into  parts  to  which  appropriate  headings  are  pre 
fixed,  is  a  matter  upon  which  judicial  opinions  are  much 
divided.  It  is  said  by  an  eminent  writer,  that  "  the  cliapter 
headings  and  thelike,in  the  revisions  of  statutes  and  in  codes, 
are  deemed  to  be  of  somewhat  greater  effect  than  theordinary 
titles  to  legislative  acts.'"'  It  is,  indeed,  said  that  "  Those 
headings  are  not  titles  of  the  acts,  but  are  parts  of  the  statute, 
limiting  and  defining  theireffect.'"*  Accordingly,  in  consider- 
ingthegovernor's  power  of  appointment  by  virtue  of  a  section 
under  a  heading  "  Of  the  pubh'c  officers  of  this  State  others 
than  militia  and  town  officers,"  it  was  said  :  "  The  power  of 
appointing  militia  officers  is,  by  this  heading,  expressly 
excepted  from  the  effect  of  this  language.  It  is  an  explicit 
declaration  that  the  authority  thus  conferred,  does  not  i-eacli 
the  case  of  a  militia  officer."  Similarly,  it  has  been  held, 
that,  the  division  of  a  statute  into  separate  subjects  or  articles, 
with  appropriate  headings,  makes  the  provisions  of  each 
■article  controlling  upon  the  subject  of  the  same,  as  a  general 
rule  for  determining  such  questions  as  may  be  embraced 
therein  ;'®  and  that  the  chapters  and  titles  in  a  revised  body 
of  laws  are  to  be  regarded  as  of  greater  influence  in  the 
construction  of  the  provisions  collated  under  them,  than  can 
be  accorded  to  the  title  of  a  statute  in  ordinary."  So,  where, 
in  a  statute,""  a  series  of  sections*'  was  preceded  by  the 
seneral  hcadino;  "with  reference  to  the  construction  of  the 
railway  and  the  works  connected  therewith  "  it  was  held  that 

(n)  See  §g  267-269.  "  lb.,    at  p.    118.     And  .see  to 

•«  Bisliop,   Written  Laws,   §  46,  similar  effect  :  Bishop  v.   Barton, 

p.    47,   citiiis?,    in   support   of   this  2  Hun  (N.  Y.)  436. 

statement  :  "Barnes    v.    Jones,    51  =*  Griffith  v.  Carter,  8  Kan.  565. 

Cal.  303  ;  People  v.  Molvneux,  40  ^9  Barnes  v.  .Tones,  51  Cal.  303. 

N.  Y.  113;   Huff  V.  Alsup.  64  Mo.  See   Huff   v.    Alsup,    64  Mo.    51, 

51  ;  Griffin  v.  Carter.  8  Kan.  565  ;  where  it  w^as  held  that  the  divisions 

Battle    V.    Shivers,     3'J    Ga.    405  ;  into  chapters  in  Wagner's  Statutes 

The  State  v.  Popp,  45  ]Md.  432  ;  U.  had    not  the  force  of    legislative 

S.   V.   Fehrenback.  2  Woods.  175  ;  enactment. 

Nicholson  v.  Mobile,  &c.  Railroad,  ^''  Railway  Clauses  Consolidatiou 

49  Ala.  205.  Act.  1845  ;  8  and  9  Vic.  c.  20. 

58  People  V.  Molyneux,  40  N.  Y.  "  6-24. 
113,  119. 


90  CHAPTER,    ETC.,    HEADINGS.  [§  70 

this  lieading  so  limited  the  words  of  the  sections  that  tlie  com- 
pensation they  provided  applied  only  to  cases  of  injuries 
caused  by  the  construction  and  not  to  those  of  injuries  caused 
by  the  use,  of  the  railway." 

§  70.  [On  the  other  hand,  it  is  undoubtedly  a  sound  rule 
of  construction,  and  one  which  has  been  followed  in  a  niulti 
tude  of  cases,  that,  where  the  intention  of  the  Legislature 
can  be  gathered  with  certainty,"  that  intention,  rather  than 
the  collocation  of  the  different  branches  of  a  provision  leading 
to  a  different  conclusion,  is  to  govern  the  interpretation."' 
It  would  seem  to  follow,  that  the  fact  that  a  particular  pro- 
vision is  ])laced  in  a  group  prefaced  by  a  particular  lieading, 
should  not  give  the  latter  any  very  great  weight  in  either 
extending  or  restricting  the  plain  language  of  the  provision, 
nor  prevent  a  construction  of  it  in  connection  with,  and  in 
the  light  of  other  provisions  in  other  parts  of  the  statute, 
classed  under  different  headings,  where,  in  the  absence  of 
such  a  division  and  classification,  a  comparison  of  all  such 
provisions  would  be  proper.  It  may  be  regarded  as  the 
sound  view,  that  the  grouping  of  provisions  in  an  extended 
statute,  a  code,  or  a  revision  of  laws,  is,  in  general,  designed 
for  "convenience  of  reference,  not  intended  to  control  the 
interpretation.""  Or,  at  most,  it  may  be  regarded  as  indicat- 
ingthe  opinion  of  the  draftsman,  the  legislators,  or  codifiers, 
as  to  the  projier  classification  of  the  various  branches  of 
the  enactment ;  which  may  or  may  not  be  accurate."*  The 
mere  classifications  can  scarcely  be  deemed  a  part  of  the  law." 
"  The  only  satisfactory  and  safe  rule  of  construction  to  be 
adopted,  is  to  read  and  construe  together  all  sections  of  the 
Code  relating  to  the  same  subject  matter,  without  reference 
to  the  particular  article  or  heading  under  which  they  may 
be  placed.""'     Hence  the  generality  of  a   heading   under 

62  Brand   v.    llaramersmith  Ry.  legislative  jouruals  :   Matthews  v. 

Co  ,  L.   11.   1  Q.  B.  130  ;  3  Q.   B.  Coin'Mi,  18  Gnitt.  (Va.)  989. 

223  ;  4  H.  L.  171.  "  f^ee  Ibid.,  and  posi.  §  318. 

"  E.(j.,  bj'   tlie    reason   of     the  ""^  Union  Steamsh.    Co.   v.   Mel- 

thinir, — by  grammatical   constiiic-  bourne    Ilarbonr  Trust,    L.    R.    9 

tion°'>f   the   flection   as  it  stands.  App.  Cas.  365. 

sliowin'j;    tliat     a    certain    clause  ""  See  Battle  v.  Shivers,  39  Ga. 

should  "follow    another,— by    the  405. 

context,— and  by  reference  to  the  "  Ibid. 

'              -^  68  State  v.  Popp,  45  Md.  433. 


§  71]  SCHEDULES.  91 

■which  a  particular  provision  is  placed  will  not  bo  permitted 
to  extend  the  proper  meaning  of  the  same.  Thus  a  provision 
as  to  when  judgments  shall  become  dormant  was  not  deemed 
to  be  affected  by  a  general  act  suspending  all  statutes  of 
limitation,  simply  because  the  former  appeared,  in  the  code, 
as  part  of  the  chai)ter  devoted  to  statutes  of  limitations/' 
Nor  will  such  heading  be  given  the  effect  of  unduly  restrict- 
ing the  meaning  of  such  a  provision,  or  of  a  phrase  used  in 
the  same.  Hence,  where  one  section  in  a  group  covered  by 
a  general  heading  obviously  refers  to  a  subject  matter  which  is 
separate  and  distinct  from  that  specified  in  the  heading  and 
dealt  with  in  the  remaining  sections  under  the  same,  it  is  to 
be  cojistrued  without  regard  to  the  heading.'"'  To  illustrate  : 
where  a  section"  which  gave  compensation  for  injury  to  land 
formed  one  of  a  group  prefaced  by  the  words  "  with  respect 
to  the  purchase  and  taking  of  lands  otherwise  than  by  agree- 
ment," it  was  held  that  this  heading  did  not  limit  the  effect 
of  the  section,  or  render  it  "an  enactment  relating  to  the 
taking  of  land  by  compulsion  when  it  obviously  has  reference 
to  no  such  purpose.""  So,  where  an  act  provided,  that 
"In  the  construction  and  for  the  purpose  of  this  Act,  the 
following  terms  shall,  if  not  inconsistent  with  the  context  or 
subject  matter,  have  the  respective  meanings  hereby  assigned 
to  them,"  and  then  provided  that  "Person  shall  include  a 
corporation,"  and  Part  ii.  of  the  act  was  headed  "officers;" 
it  was  held  that  the  words  "  person  "  occurring  in  that  group- 
was  not  to  be  confined  to"  officers,"  because  of  the  heading, 
since  other  matters  besides  officers  were  included  as  the 
subject  matters  of  the  same." 

§  71.  Schedules.— [A  schedule  to  an  act,  it  is  said,  is  not 
itself  an  enactment,  though  it  may  be  an  aid  in  explaining 
one  that  is  doubtful.''*  As  such,  it  cannot,  of  course,  con- 
trol the  positive  words  of  the  statute  itself.      So,  where  an 


«9  Battle  V.  Shivers,  supra.  Ry.  Co.,  L.  R.  4  H.  L.  171,  217. 

'<>  Wilb..  p.  296.  "  Union   Steamsli.    Co.    v.   Mel- 

"  §  68,  Laud  Clauses  Act,  8  and  bourne    Ilaibour  Trust,    L.    R.    9 

9  Vic.  c.  18.  App.  Cas.  365. 

"  Broadbent  v.  Imper.  Gas  Co..  ''-^  R.  v.  Epsom,  4  E.  &  B.  1003, 

7  De  G.,   AI.   &  G.  436,  447,  448  ;  1008,  1012,  per  Lord  Campbell,  C 

and  see  Brand  v.  Hammersmith,  J. 


-^2  RESUMK.  [§  T2 

act  provided  that  two  sworn  appraisers  should  vahie  goods 
distrained  for  rent,  and  the  schedule  to  a  later  act  specified 
sixpence  in  the  pound  as  the  charge  for  appraisement, 
"whether  by  one  broker  or  more,"  it  was  held  that  this  did 
not  repeal  the  requirement  of  two  appraisers."  A  form 
given  in  a  schedule,  especially  if  there  is  no  reference  to  it 
in  the  body  of  the  act,  is  to  be  regarded  merely  as  an  exam- 
ple." And  even  where  such  reference  is  made,  if  the  form 
giveti  in  the  schedule  diverges  from  the  plain  requirements 
of  the  body  of  the  act,  it  cannot  be  held  to  repeal  the  same  ; 
as,  where  the  act  provided  that  all  informations  exhibited 
before  any  justice  or  justices  of  the  peace  for  any  offense 
against  the  customs  should  be  drawn  in  the  form  or  to  the 
effect  in  the  schedule  annexed  to  the  act,  and  the  form  in 
the  schedule  used  words  indicating  that  the  information  was 
supposed  to  be  made  before  two  justices,  it  was  held  that 
this  circumstance  did  not  override  the  provisions  of  the  act ; 
that  the  information  might  be  made  before  one  justice ;  and 
that  the  form  prescribed   might  be  accordingly  modified."] 

§  72.  Resume.— In  a  word,  then,  it  is  to  be  taken  as  a  fiyi- 
damental  principle,  standing,  as  it  were,  at  the  threshold  of 
the  whole  subject  of  interpretation,  that  the  intention  of  the 
Legislature  is  invariably  to  be  accepted  and  carried  into 
effect,  whatever  may  be  the  opinion  of  the  judicial  inter- 
preter, of  its  wisdom  and  justice.  If  the  language,  [read 
in  the  order  of   its   clauses,"  presents  no  ambiguity    and] 

'5  Allen   V.  Flicker,  10  A.  &.  E.  cases  upon  this  subject  would  seem 

(540.  to  be,  that  the  I'orni  prescribed  in 

•6  Hannah   v.  Whyman,  2  C.  M.  the  schedule  must   be  iollowed  if 

&  R.  239.  this  can    be   done   without   incon- 

"^  11.  V.  Russell,    13   Q.   B.    237.  venience  or  sacrifice  of   the  effect 

It    follows,  that,  where  a  form  is  and  operation  the  act  is  inlended  to 

prescribed  by  a  schedule,  it  is  "oidy  have  ;  but  that,  where  such  would 

to  be  Iollowed  implieilly  so  far  as  be  tiie  consequences  of  strictly  fol- 

the  circumstances  of  each  case  may  lowing    the   prescribed    form,   the 

admit  :"  Barllett  v.  Gibbs,  5  M.  &  latter,  "  which  is  madetosiiitrather 

G.,  at  p.  96.     But  see,  for  instancts  the   generality   of    cases   than   all 

in  which  it  was  held  tiial  the  forms  cases,     must    give    way:"    K.     v. 

contained  in  tiie  shednles  to  Acts  B.irnes,  12  A.  &  E.  227.     And  see 

of  Parliament  must   be  strictly  fol-  Wilb.,  pp.  ;30o-308,  from  which  this 

lowed  :  Davidson    v.  Gill,  1    East,  note  and  the  above  section  is  main- 

64  ;  U.  V.  Finder,  24  L.  J.   Q.  B.  ly  compiled  ;  and  post,  i^  197. 
148  ;    Eiveroool    Borough    B  k   v.  ''»  Sec  Poor  v.  Cousidiue,  6  Wall. 

Turner,  14  J.  &  H.  109  ;  2  De  G.,  458. 
F.    &   J.  502.     The   result  of   the 


§  72]  KESUME.  93 

admits  of  no  doubt  or  secondary  meaning,  it  is  simply  to  be 
obeyed,  without  more  ;  [for  the  intention,  controlling  though 
it  be,  can  be  resorted  to  only  to  find  what  the  Legislature 
intended  to  do,  not  what  it  has  done."]  If  it  admits  of 
more  than  one  construction,  the  true  meaning  is  to  be 
sought,  [first  of  all,  in  the  statute  itself"  as  applied  to  the 
subject  matter  to  which  it  relates"] — not  on  the  wide  sea  of 
surmise  and  speculation,*''  but  "  from  such  conjectures  as 
are  drawn  from  the  words  alone,  or  something  contained  in 
them  "  («)  ;  that  is,  from  the  context  viewed  by  such  light 
as  its  history  may  throw  upon  it,  and  construed  with  the 
help  of  certain  general  principles,  and  under  the  influence 
of  certain  presumptions  as  to  what  the  Legislature  does  or 
does  not  generally  intend. 

"  Leavitt  v.  Blatchford,  5  Barb.  ^i  Brewer    v.    Blougher,  14  Pet. 

(N.  Y.)  9.  178. 

80  Tyman  v.  Walker,  35  Cal.  634;         ^^  Cearfoss  v.  State,  42  Md.  403. 
Virginia,  etc.  R.   R.    Co.  v.  Lyon         (a)  Puff.  L.  N.  C.  5,  c.  13,  s.  2, 

Co.,  6  Nev.  68.  note  by  Barbeyrac. 


^4  SUBJECT  MATTElt  AND  OBJECT.  [§  T3 


CHAPTER  lY. 

Presumptions  Arising  from  Subject  Matter  and  Object 
OF  Enactments,  as  to  Language  used. 

§    73.  Words  Construed  with  Reference  to  Subject  Matter  and  Object. 

§    74.  Technical  Meaning. 

§    76.  Popular  Meaning. 

§    78.  Ordinary  Meaning  Preferred. 

tj    81.  Rules  of  Grammar. 

§    83.  Commerciiil,  etc.,  Terms. 

§    84.  Meaning  Differing  in  Different  Localities. 

§    85.  Meaning  of  Words  at  Date  of  Enactment. 

^    8C.  Restriction  of  General  Words  to  Subject  Matter,  etc. 

fc^    87.  '-Persons,"  and  otlier  General  Words. 

§    91.  "  Inliabitant,"  "  Resident,"  etc. 

§    95.  "  Occupier,  '  etc. 

§    96.  "Owner." 

^    97.  Additional  Illustrations. 

§  102.  Object  may  Supply  Unexpressed  Condition. 

§  lOo-.  Beneficial  Construction. 

§  104.     "  Done  "  including  "  Omitted." 

§  105.  Qui  Facit  per  Alium,  etc. 

g  107.  Liberal  Construction  of  Remedial  Acts. 

§  108.  What  are  Remedial  Acts. 

g  110.     Extension  beyond  Letter.     General  Intent. 

§  112.  Extension  to  New  Things. 

§  73.  Words  Construed  with  Reference  to  Subject  Matter  and 
Object.  — The  words  of  a  statute  are  to  be  understood  in  the 
sense  in  which  they  best  liarmonize  with  the  subject  of  the 
enactment  and  the  object  which  the  LegisLature  has  in  view 
(a).  Their  meaning  is  found  not  so  much  in  a  strictly 
grammatical  or  etymological  propriety  of  language,  nor  even 
in  its  popular  use,  as  in  the  subject  or  in  the  occasion  on 
which  they  arc  used,  and  the  object  to  be  attained  (5).  [That 
is,  in  the  construction  of  a  statute,  as  in  that  of  other  instru- 
ments, words  are  to  be  understood,  not  according  to  their 
mere  ordinary  general  meanings  but  according  to  their  ordi- 

(a)  Sup     ^  27  &  G.  136  ;  Grot,  de  B.  &  P.  b.  2,  s. 

(b)  Per  Cur.  in  R.  v.  Hall,  IB.      16  ;  Puff.  L.  N.  b.  5,  c.  12,  s.  3. 


i|  73]  SUBJECT  MAITER  AND  OBJECT.  95 

nary  meaning  as  applied  to  the  sul)jcct  matter  witli  regard 
to  which  tliey  are  used,  unless  indeed  there  be  something 
requiring  them  to  be  read  in  a  sense  which  is  not  their 
ordinary  sense  in  the  English  language  as  so  applied.'  "  It  is 
a  general  and  very  sound  rule, applicable  to  the  construction  of 
every  statute,  that  it  is  to  be  taken  in  reference  to  its  sub- 
ject matter."*  And  equally  the  construction  ought  to  be 
with  reference  to  the  object  to  be  accomplished  by  the  act,' 
and  to  keep  in  view  the  conditions  existing."]  This  is  evi- 
dent enough  in  the  simple  case  of  a  word  which  has  two  to- 
tally different  meanings.  The  Act  of  Ed.  III.,  for  instance, 
which  forbade  ecclesiastics  to  purcliase  ''  provisions "  at 
Rome,  would  be  construed  as  referring  to  those  papal  grants 
of  benefices  in  England  which  were  called  by  that  name, 
and  not  to  food  ;  when  it  was  seen  that  the  object  of 
the  Act  was  not  to  prevent  ecclesiastics  from  living  in 
Home  but  to  repress  papal  usurpations  (c).  ["'  The  same 
words  might  mean  a  very  different  thing  when  put  in  to 
impose  a  tax,  from  what  they  would  mean  when  exempting 
from  a  tax."^]  The  "  vagabond  "  of  the  Vagrant  Act,  is  not 
the  mere  w^anderer  of  strict  etymology  {d).  No  one  is  likely 
to  confound  the  "  piracy  "  of  the  high  seas  with  the"  piracy  " 
of  copyright;  or  to  give,  in  one  branch  of  the  law,  the  meaning 
which  would  belong,  in  another,  to  a  host  of  familiar  words, 
such  as  "accept,"  "assure,"  "  issue,"  "  settlement."  In  the 
Succession  Duty  Act,  which  provides  that  the  instalments  of 
duty  payable  by  a  successor  shall  cease  at  his  death,  except 
when  he  is  "  competent  to  dispose  by  will  of  a  continuing 
interest  in  the  property,"  the  competency  intended  is 
•obviously  not  mental  sanity  or  freedom  from  personal  inca- 
pacitj^,  but  the  possession  of  an  estate  of  inheritance  which 

^  Lion  Ins.  Ass'a  v.  Tucker,  L.  ^  PeojDle  v.  Dana,  22  Cal.  11,  and 

E.  12  Q.  B.  D.  18G.  infra. 

•^  Sedsrw.    p.    o59.      And   see   to  "*  Anderson  v.    R.    R.    Co.,    117 

same  effect  :   Brewer  v.  Blongher,  111.  26. 

14   Pet.    198  ;   Op.   of  Justices,   7  (c)  1  Bl.  Comm.  60  ;  Statutes  of 

Mass.  533  ;  State  v.  Mayor  of  Pat-  Provisors  or  Praemunire  passed  in 

■erson,  35  N.  J.  L.   197  ;  Catlin  v.  1343,  1353,  13G4.  1390,  and  1401. 

Hull,    21   Vt.    152;     Kuggies    v.  *  Blackburn,  J.,  in  Rein  v.  Lane, 

Wasliington  Co.,  3  Mo.  496;  and  L.  R.  2  Q.  B.  at  p.  151. 

illustrations  infra.   See  also,  Bisb.,  (rf)  Monck  v.  Hilton,   2  Ex.  D. 

Writt.  Laws,  §j^  95a,  98a,  111,  and  268. 
cases  cited. 


90 


SURIIXT  MATTKR  ANT)  OB.TKCT. 


[§T4: 


is  capable  of  disposition  by  will  («).  The  Gas  Works  Con- 
solidation Act,  did  not,  by  calling  the  debt  due  for  gas, 
*'  rent,"  authorize  a  distress  for  the  debt  under  the  Bankrupt 
Act,  which  regulates  the  power  of  distress  of  a  landlord  "  or 
other  jierson  to  whom  '  rent'  is  due"  by  tlie  bankrupt  {b). 
The  Mutiny  Acts  which  exempt  soldiers  from  the  payment 
of  tolls  over  "  bridges,"  would  not  carry  the  exemption  to  a 
steam  ferry  boat,  because  it  is  called  a  floating  bridge  {c). 
The  enactment  which  prohibited  parish  officials  from  being 
concerned  in  contracts  for  supplying  goods,  materials  or  pro- 
visions, "  for  the  use  of  the  workhouse,"  meant  "  for  the  use 
of  the  persons  fn  the  workhouse,"  and  therefore  did  not 
apply  to  a  contract  for  the  supply  of  materials  for  the  repair 
ot  the  building,  (d)  [A  moving  train  of  cars  is  not  a  "struc- 
ture "  such  as  contemplated  by  an  act  making  railway 
companies  liable  for  injuries  on  the  highway  by  structures 
legally  placed  by  them  upon  it.* 

§   74.   Technical  Meaning. — [An    obviouS  result   of  this    rulc 

is,  that,]  where  technical  words^are  used  in  reference  to  a 
technical  subject,  they  are  primarily  interpreted  in  the  sense 
in  which  they  are  understood  in  the  science,  art,  or  business 
in  which  they  have  acquired  it  {e).  [Thus,  upon  subjects 
relating  to  courts  and  legal  proceedings,  the  Legislature  may 


(a)  16  &  17  Vict.  c.  51.  s.  21  ; 
Attorney-General  v.  Hallett,  2  II. 
&  N.  868,  37,  L.  J.  89.  See  also 
E.  V.  Owen,  15  Q.  B.  476.  As  to 
a  iudgmeut  beinii"  "final,"  Rids- 
dale  V.  (Milton,  2  P.  D.  276,  46  L. 
J.  27.     [See  ^  74,  note  9.] 

(i)82  &  3:5  Vict.  c.  71,  s.  34; 
Exp.  Hill,  6  Ch.  D  63,  46  L.  J. 
116.  As  to  "tol's"  in  railway 
acts,  see  the  cases  collected  in  the 
judgment  of  Field,  J.,  in  Brown  v. 
G.  W.  R.  Co.,  i)  Q.  B.  D.  750. 
That  water  "rates"  i)Mid  by  con- 
sumers of  water  supplied  through 
municipal  water-works  are  not 
taxes,  see  Jones  v.  Water  Comm'rs 
of  Detroit.  34  Alich.  273.  And  see 
Smith  V.  Philadelphia,  81  Pa.  St. 
38  ;  Girurd,  etc.,  Co.  v.  Philadel- 
phia. 88  Id.  393.  394. 

(c)  AVard  v.  Gray,  6  B.  &  S. 
345. 


(d)  55  Geo.  3,  c.  137,  s.  6  ;  Bar- 
ber V.  Waite.  1  A.  &  E.  514; 
C^omp.  4  ct  5  Wm.  4.  c.  76.  s. 
77. 

^  Lee  V.  Barkhampsted,  46Conu. 
213.  But  under  a  statute  giving 
mechanics'  liens  to  mining  claims, 
a  mine  or  pit  sunk  was  deemed  a 
"  structure  :"  Helm  v.  Chapman, 
66  Cal.  291. 

(e)  Grot.  b.  2,  c.  16,  s.  3  ;  Vattel, 
b.  2,  8.  276  ;  Evans  v.  Stevens,  4 
T.  R.  462,  per  Lord  Keuyon  ; 
]\Iorrall  v.  Sutton.  1  Phil.*533; 
Doe  V.  Jesson.  2  Bligh,  2  ;  Doe  v. 
Harvey,  4  B.  &  C.  610  ;  Abbot  v. 
]\liddleton,  7  H.  L.  68,  28  L.  J. 
Ch.  110;  The  Pacific,  33  L.  J.  P. 
!M.  &  A.  120  ;  see  pe7'  James,  L.  J., 
in  Boucicault  v.  Chatterton,  5  Ch. 
1).  275.  [Clark  v.  Utica,  18  Barb. 
(N.  Y.)  451,  and  see  ante,  g§  2,  3„ 
and  infra.] 


^  74r]  SUBJECT  MATTER  AND  OBJECT. 


97 


be  presumed  to  speak  technically,  unless,  from  the  statute 
itself,  a  different  use  of  the   language    may  be   apparent.' 
Hence  where  at  act]  gave  the  effect  of  judgments  to  rules  of 
Court,  for  the  payment    of    money,  and    a  later    one  (the 
Common    Law     Procedure     Act,    1854,    s.    GO)    authorized 
creditors  who  obtained  judgment  to  recover  the  amount  by 
the  new  process,  which  it  introduced,  of  foreign  attachment^ 
it  was  held  that  this  remedy  did  not  apply  to  rules  of  Court,, 
the  object  of  the  former  Act  appearing  to  be  merely  to  give 
to  rules  the  then  existing  remedies  of  judgments,  and  of  the- 
latter,  to  confine  the  new  remedy  to  judgments  in  the  strict 
acceptation  of  the  term  {a).     [And  where  an  act  directed 
that  the  coroner  should  serve  process  in  cases  in  which  the 
sheriff  was  a  parti/,  it  was  held  that  he  must  be  technically 
a  party,  and  that  his  merely  being  interested  in  a  suit  was 
not  sufficient/     So,  where  an  act  declared  that  a  judgment 
entered    in    certain    proceedings    should    be  Jinal,    it    was 
declared  that  the  word  should  be  taken  in  its  technical  sense 
and    as    precluding    an     appeal.*     Again,  proceedings    in 
insolvency  were  held  not  to  be  an  action  within  the  meaning 
of  that  word  in  a  statute  saving  from  the  effect  of  the  pass- 
age or  repeal  of  an  act  actions  pending  at  the  time."     Nor 
does  the  term  jproceeding  in  the  provision  of  a  code,  that 
"  no  action  or  proceeding  commenced  "  before  its  adoption 
shall  bo  affected  by  it,  include  a  judgment,  the  latter,  l)eing 
an  entire  act,  and  incapable,  in  any  proper  sense,  of  being 
said  to  be  commenced  before  a   certain  day."     Nor  is  an 
election  covered  by  a  similar  clause  as  to  "proceedings."'* 
Nor,  again,  is  a  petition  for  partition  an  action  within  the 
meaning  of  a  statute  giving  costs,  to  the  prevailing  party  in 
all  actions.'^     A  writ  of  levari  facias  sur  mortgage  is  civil 
process  within  the  meaning  of  the  Pennsylvania  stay-laws  ;" 

'Merchants'     B'k    v.    Cook,  4  K  C.  (N.  Y.)  423. 

Pick.  (Mass  )  405.  ^  Snell  v.  Bridciewater,  etc.,  Co., 

{a)  Re  Fnmklaiul,  L.  R.  8  Q.  B.  24  Pick.  (Mass.)  2S6. 

18  ;  Best  v.  Pembroke,  L.  R.  8  Q.  '"  Belfast  v.  Folger,  71  Me.  403. 

B.  363.  "  Dii'ly  V.  Burke,  28  Ala.  328. 

8  Merchants'     B'k       v.      Cook,  ''^  Gordon  v.  Stale,  4  Kau.  489. 

supra.       See,     for    similar     con-  '*  Couuce  v.  Persons  Unknown, 

struclion    of    "party"   under    act  76  Me.  548  ;  Com  p.  post,  §  77. 

compelliiii,'  production  of   books,  "  Coxe  v.    Martin,   44  Pa.    St. 

etc. :  Adriance  v.  Sanders,  11  Abb.  322. 
7 


98  SUBJECT  MATTER  AND  OBJECT  [§  75 

and  so  is  a  writ  of  assistance  with  fieri  facias  for  cot^ts." 
But  a  landlord's  distress  warrant  is  not  "process"  within 
the  meaning  of  the  act  making  the  obstruction  of  process 
as  indictable  offence.'"  A  provision  abolishing  imprison- 
ment for  debt  does  not  prohibit  commitments  under  attach- 
ment for  failure  to  comply  with  an  order  of  the  court." 
And  where  a  statute  authorizes  a  criminal  prosecution  to  be 
instituted  on  complaint,  the  technical  meaning  of  that  term 
implies  a  complaint  under  oath  or  affirmation  ;'*  and  the 
requirement  of  service  of  a  notice  means  personal  service 
Tinless  otherw^ise  specified." 

§  75.  [But  the  rule  giving  to  a  word  its  technical  mean- 
ing holds  equally  good  in  the  construction  of  statutes  deal- 
ing with  other  subjects  as  to  which  words  and  phrases  used 
in  a  statute  have  acquired  such  a  meaning,  W'hether  it  be  a 
legal  technical  meaning  or  not ;  i.  e.^  whether  it  be  a  techni- 
cal meaning  which  the  word  or  phrase  has  acquired  in  the 
law,  or  a  technical  meaning  which  it  has  acquired  in  any 
other  science,  art,  or  business,  if  the  enactment  relates  to 
any  of  these,  the  technical  meaning  the  word  has  in  the 
law,  in  any  other  science,  in  any  art,  or  in  any  business  is 
to  be  given  to  it,  accordingly  as  the  one  or  the  other  is 
the  subject  of  the  enactment. 

[It  has  already  been  seen,'"'  that  a  word  which  has  a  settled 
commbn  law  meaning,  when  used  in  an  act  upon  the  subject- 
matter  as  to  which  it  has  acquired  such  meaning,  is  to  be 
80  understood.  So,  in  dealing  with  criminal  or  penal  mat- 
ters, the  statute  is  presumed  to  use  its  language  with  refer- 
ence to  the  ascertained  meaning  of  the  language  of  the 
criminal  law.  The  word  steal  thus  implies  simple  larceny,*" 
the  word  murder  malice  aforethought,^^  and  the  word  7'oh- 
hery  its  technical  significance."     An  act  declaring  that  "  all 

'^  Clark  V.  Martin,  3  Grant  (Pa.)  '»  Rutlibnn  v.  Acker,  18  Barb. 

393  (N.  Y.)  J5'J3. 

'«'  Com'th  V.  Leech,  27  Pitts.  L.  '^o  Ante,  §  3. 

J.  (Pa.)  233.  '•'•Alexander  v.    State,    12  Tex. 

'1  Wood  V.  Wood,  Pliill.  L.  (K  540. 

C.)     538.      Compare    ante,   g   14,  --  State   v.  Phelps,  24  La.    An. 

Pierce's  App.,  102  Pa.  St.  27.  493. 

•8  Campbell    v.    Tliompson,    16  ^s  u.  s.  v.  Jones,  3  Wash.  209. 
Me.  117. 


§  75]  SUBJECT  MATTER  AND  OBJECT.  99 

joint  obligations  and  covenants  shall  hereafter  be  taken  and 
held  to  be  joint  and  several  obligations  and  covenants,"  was, 
becanse  of  the  technical  sense  of  the  word  obligation,  when 
nsed  with  reference  to  the  contract  itself,  not  the  duty  or 
liability  arising  thereon,'^*  held  not  to  include  oral  ones." 
Similarly  the  word  j)ur chaser,  having  a  well-detined  techni- 
cal meaning,  including  every  holder  of  the  legal  title  to 
real  and  personal  property  where  such  title  was  acquired  by 
•deed,  w^as,  when  used  in  a  statute,  held  to  embrace  a  mort- 
gagee.'" And,  upon  the  same  ground  of  technical  meaning, 
the  same  words  were  declared  not  to  include  a  judgment 
creditor,  under  the  Pennsylvania  recording  act  protecting 
■certain  purchasers  and  mortgagees  against  unrecorded  mort- 
gages.^^ Again,  under  the  Pennsylvania  married  women's 
act  of  1848,  which  declared  that  the  property  of  such  mar- 
ried woman  should  be  her  "  sole  and  separate  "  property,  free 
from  the  control  of  her  husband,  etc.,  it  was  decided,  that, 
in  conformity  with  the  accepted  technical  meaning  of  that 
phrase,  the  proper  construction  of  the  act  was  to  make  the 
property  of  a  married  woman  hers  in  all  respects  as  if  set- 
tled to  her  sole  and  separate  use,  and  that  the  rules  of  law 
governing  such  estates  in  equity  were  thereafter  to  be 
applied  to  the  legal  estates  of  married  women  under  the 
statute.^*  Again,  under  an  act  prohibiting  preferences  of 
creditors  in  assignments  for  the  benefit  of  creditors,  it  was 
decided  that  a  mortgage  for  the  benefit  of  creditors  was  not 
included,  an   assignment  importing    an   absolute  transfer.^' 

^*  See    Crandall    v.     Bryan,  15  stated   that   no  purpose   could  be 

How.  Pr.  (N.  Y.)  56,  as  to  incur-  discovered  from  tlie  act,  ils  objects 

ins;  an  obligation  by  fraud.  or  preamble,  to  protect  judijment 

''-5  Excb.'  B'k  V.  Ford.  7  Col.  314,  creditor.-^  ;)   Hiester  v.    Fortner,    2 

cit.     Sturiiis   v.    Cowninshield,    4  Binn.   (Pa.)  40  ;    Cover  v.  Black,  1 

Wbeat.  193  ;  Ga^e  v.  Bank,  17  111.  Pa.  St.  493  ;  Stewart  v.  Freeman, 

62  ;  Strong  v.  Wbeaton,  38  Barb.  22  Id.  123. 

(N.  Y.)  616  ;  Barker  v.  Cassidy,  10         -^  Bear's   Adm'r  v.  Bear,  33  Pa. 

Id.  184  ;  Rippon's  Ex'rs,  v.  Town-  St.  525  ;  Pettit  v.  Fretz's  Ex'r,  Id. 

send's   Ex'rs   1  Bay  (S.    C.)  445  ;  118.     Compare,  however,  Emmert 

Gale  V.  Myers,  4  Houst.  (Del.)  546.  v.    Hays,  89  111.  11,  where  it  was 

^^  Hnlbert  v.  McCuUoch,  3  Mete,  held  the  phrase  "  separate  estates," 

(Ky.)   456  ;    a   mortgagee  being  a  as    used   in   tlie    Illinois    married 

purchaser   within   the    statute    of  woman's    act,     Rev.     Stat.    1845, 

Elizabeth  :   Bond   v.    Bunting,    78  ch.  109,  was  to  be  understood  in  a 

Pa.  St.  210,  219.  broader  and  more  popular  sense. 

^T  Rodgers  v.  Gibson,  4  Yeates         "9  joimgon's   App.,  103   Pa.    St 

Pa.)  Ill  ;  (it  being,  however,  also  373. 


100  SUB.IECT  MATTEU  AND  OBJECT.  [§  75 

And  under  an  net  which  provided  that,  where  a  person  was 
accused  of  a  crime  and  the  charf^e  found  unsustaiiied,  the 
county,  not  the  defendant,  should  pay  the  costs,  the  common 
usaf'e  of  the  word  "crimes"  as  denoting  offences  of  a 
deeper  and  more  atrocious  dye,  whilst  comprising  smaller 
offenses  under  the  general  name  of  misdemeanors,  was 
rejected  in  favor  of  the  more  technical  interpretation 
wlierebv  crimes  and  misdemeanoi-s  are  to  be  understood  as 
synonymous,  denoting  offenses  short  of  felony/"  So  the 
word  "  property,"  as  applied  to  lands,  includes  every 
species  of  title,  inchoate  and  complete,  and  embraces  rights 
Ivino-  in  contract,  executory  as  well  as  executed."  An  act, 
which,  while  permitting  the  construction  of  a  canal,  gave 
damages  (taking  into  consideration  the  advantages)  from  its 
location,  to  the  owner  of  lands  "  by  interfering  in  any  man- 
ner with  his  rights  of  property ,'"  was  held  to  authorize  the 
recovery  of  consequential  damages  resulting  from  the  back- 
ing of  water  upon  his  land,  although  no  part  of  the  latter 
was  actually  taken. '^  And  an  act  of  assembly  releasing  the 
rights  of  the  Commonwealth  to  certain  property,  and  declar- 
ing the  estate  convoyed  by  a  certain  deed  effectual,  notwith- 
standing the  grantee  was  a  foreign  corpoi-ation,  was  held  to 
be  a  conveyance  by  matter  of  "  record"  to  the  exclusion  of 
the  vendor's  subsequent  attaching  or  judgment  creditors." 
So  a  turnpike  road,  laid  out  under  a  legislative  charter  for- 
feited by  the  turnpike  company,  and  used  by  the  public  is  a 

20  Lehisih  Co.  v.  Shock,  113  Pa.  Ingrahara, -SSMiss.  25,  foradictum 

St.  373,  37'.).  to  the  efifccl  tliat  "personal  pio- 

31  Fisig   v'.    Snook,    9   Ind.    203.  perty "   does   not   striftly   include 

An   action  for  damages  for  malic-  prumissoiy    notes.     Comp.    Eugel 

ions  proseciU ion,  before  judgment,  v.     Slate.     65    jMd.    531),     that     it 

was   held   not   to   be    "  i)roiKMty  "  includes  choses  in  aclion.     "  Auy 

within  exemption  law  :  Hopkins" V.  .    .    .    commodity  -whatever"  was 

Fogler,  (50  Me.  200.    But  in  Steven-  held  to  embrace  every  species  of 

soifv.  Morris,   37  Onio  St.    10.  a  personal   property,   in    Barnett  v. 

right  of  action  for  assault,  and  bat-  Powell,  Lilt.  Sel.  Cas.  (Ky.)  409. 

tcTy  was  held   to  be    "properly."  The  word  "  stock,"  in  North  Car- 

And  see  Chicago,  etc.,  R.  R.  Co.  olina  act,  1790,  was  construed  in  the 

V.  Dunn,  52  111."  200.       As  applied  sense     commonly     acceptetl.     and 

to    personally    in    a    ta.xing    act,  excluding  other  peiisliable  goods  : 

•■  property"   was  held   to   include  Van   Noordeu   v.    Prin,   2   llayw. 

credits:  People  v.  Worlhington,  21  (N.  C.)  149. 

111.  171.     Money   was    held   to   be  ^-  Com'th   v.    Snyder,   2  Watts 

pioperty  within   a  statute  accainst  (Pa.)  418. 

stealing:   People  v.   Williams,  24  »»  Cavcrow  v.  Ins.  Co.,  53  Pa.  Si- 

Mich.   150.     But  see  Mclntyre  v.  287. 


§76] 


SUBJECT  MATfER  AND  OBJECT. 


101 


puMiG  road  ".vithiii  the  inciiniiig  of  an  act  requiring  a  rail- 
road company  taking  a  public  road  to  construct  another." 
And  the  word  "  conntr}',"  in  revenue  laws,  according  to  its 
established  meaning  in  legislative  and  departmental  practice, 
embraces  all  the  possessions  of  a  foreign  state  whicli  are  sub- 
ject to  the  same  supreme  executive  and  legislative  control." 
Upon  the  same  principle,  the  word  "army  "  in  acts  of  con- 
gress does  not  include  the  navy  or  the  marine  corps  ;"  and 
the  term  "supersede  "  in  the  Massachusetts  militia  act  was 
construed  with  reference  to  the  technical  meaning  in  which 
it  is  used  in  military  affairs." 

§  70,  Popular  Meaning. — 13ut  in  general,  statutes  are  pre- 
sumed to  use  words  in  their  popular  sense ;  uti  loquitur 
vulgus  {a).  [Hence  the  technical]  meaning  is  rejected,  as 
soon  as  the  judicial  mind  is  satisfied  that  another  is  more 
agreeable  to  the  object  and  intention.  (6)  Thus  the  38  Geo. 
3,  c.  5  and  c.  60,  which  exempted  "liospitals"  from  the 
land  tax,  was  construed  as  applying  to  all  establishments 
popularly  known  by  that  designation,  and  even  as  extending 
to  an  asylum  for  orphans  (c) ;  when  it  appeared  more 
consonant  to  the  object  of  the  Act  to  give  it  that  wider 
meaning,  tlian  to  restrict  it  to  what  are  alone  "hospitals" 


^Pittsb.,  etc.,  R.  R.  Co.  v. 
■Com'rli,  104  Pa.  St.  o83.  The  for- 
feiluie  of  the  company's  charter  de- 
stroyed I  lie  rights  of  tlie  corpora- 
tion ;  but  the  road,  being  a  public 
liighwav  as  a  turnpike  :  Mor. 
Centr.  R.  R.  Co.  v.  Com'th,  90 
Id.  300,  remained,  in  fact  and  in 
law,  a  public  highway:  Pittsb., 
etc.  R.  R.  Co.  V.  Com'th,  supra, 
cit.   Craig  v.  People,  47  111.  405. 

35  Stairs  v.  Peaslee,  18  How.  521. 

36  Re  Biulev,  2  Sawyer,  200. 

3'  Exp.  llalr,  1  Pick.  (Mass.)  261. 
The  plirase  "  shall  go,"  in  a  statute 
declaring  tiie  rights  of  a  husband 
and  wifi!  to  property  held  in  com- 
mon, upon  the  death  of  either,  was 
construed  "  shall  vest  :"  Broad  v. 
Broad,  40  Cal.  493. 

(a)  The  Fusilier,  34  L.  J.  P.  I\I. 
&  ^V.  27,;?^'?*  Dr.  Lushington.  [And 
see,  lo  .same  effect  :  Maillard  v. 
Lawrence,  IG  How.  251  ;  Seiuifer 
T.  Wood,  5  Blatcbf.  215  ;  U.  S.  v. 


Clayton.  2  Dill.  219  ;  Pavers  v. 
Glass,  22  Ala.  621  ;  Mayor  of  We- 
tumpka  V.  Winter,  29  Ala.  651 ; 
Sebool  Dir's  v.  Bank,  8  Watts.  (Pa.) 
350  ;  P.  &  R.  R.  R.  Co.,  V.  Caia- 
wissa,  etc.,  R.  R.  Co.  53  Pa.  St. 
20  ;  Fox's  App.,  112  la.  337,  351  ; 
Quiu;ley  v.  Gorliam,  5  Cal.  418  ; 
Parkinson  v.  Slate,  14  Md.  184 ; 
Allen  V.  Ins.  Co..  2  Id.  Ill  ;  En- 
gelking  v.  Von  Wamel,  26  Tex. 
469  ;  and  see  ante,  §  2,  and  cases  in 
note  5.] 

(/>)  Per  Lord  Wenslej'dale  in 
Ready  v.  Fitzgerald,  6  H.  L.  877. 
See  also  Towns  v.  Wenlworth,  11 
Moo.  543.  [In  construing  a  statute 
of  limitations,  the  pbrase  "any 
article  charged  in  a  store-account," 
was  held  to  apply  to  wliolcsale  and 
retail  storeaccuunts  :  Solomon  v. 
Coop.  Co.,  21Fla.  374] 

(r)  Colchester  v.  Kewney,  L.  R. 
2  Ex.  363.  See  R.  v.  Manchester, 
4  B.  &  A.  504. 


102  SUBJECT  ]s[atti-:k  and  object.  [§  76 

in  the  strict  le^al  sense  of  the  term,  that  is,  eleemosynary 
institutions  in  which  the  persons  benefited  form  a  corporate 
body  (^0-     ^^"  ^^^  wliich  privileged  a  bankrupt  from  arrest 
for  "debt"  was,  on  the  same  principle,  extended  to  arrest 
for  non-payment  of  money  ordered  to  be  paid  by  an  order 
of  the  Court  of  Chancery,  or  by  a  rule  of  a  common-law 
court,  though  technically  not  consituting  a  debt  (b) ;  and  the 
primarily  technical  term  "  purchase)-,"  was  understood  to  be 
used  in  the  Bankruptcy  Act,  in  the  popular  sense  of  buyer 
(g).     [So,  under  the  Pennsylvania  statute,  under  which  an 
attachment  execution  will  not  lie  for  a  demand  founded  in 
tort,  as  for  the  detention  of  chattels,  but  only  for  a  debt 
arising  from  contract,  express  or  implied,  it  was  held  that 
money  deposited  for  a  certain  use,  if  not  so  used,  is  a  "  debt 
due  "  the  depositor  ;'*  and  under  a  Connecticut  statute  author- 
izing foreign  attachment   "  where  a  debt  is  due  from  any 
person,"  etc.,  it  was  held  the  word  "  due  "    was  not  to  be 
understood  in  the  restricted  sense  of   "  payable,"  although 
there  must  be  an  existing  indebtedness.'']     So,  when  it  was 
enacted  (5  &  6  W.  4,  c.  54),  that  marriages  already  celebrated 
between  persons   within  prohibited  degrees  should  not  be 
annulled  for  that  cause,  unless  by  sentence  pronounced  in  a 
suit  then  "depending;"  it  was  held  that  this  last  word  was 
to  be  understood  in  a  popular  and   not  technical  sense,  and 
that  a  suit  was  "depending"  as  soon  as  tlie  citation    liad 
been  issued  {d)  [And  under  a  statute  providing   that   the 
repeal  of  a  statute  should  not  affect  "  pending  action,  prose- 
cutions, or  proceedings,"  it  was  held  that  a  prosecution   was 

(a)  Sutton's  Case,  10  Rep.  31a.  Jones    v.  Thompson,  E.  B.  &  E. 

(M  Exp    Williams,  1  Sch.  &  Lef.  (53  ;  27  L.  J.  234  ;  Dres'^er  v.  .Joues,. 

IG'J  •     il   V    Edwards,    9    B-   <S:  C.  G  C.  B.  N.  S.  429;  Hi(;liardson  v. 

652  •  R   V    Dunne,  2  M.  &  S.  201  ;  Hunt,   2  C.  B.  D.  9  ;  Hall  v.  Prit- 

Lces  V   Newton,  L.  R.  1  C.  P.  658.  chelt,  3  Q.  B.  D.  215.  77  L.  J.  15  ; 

Conip    Bancroft  v.  Mitehell.  L.  K-  E\p.  Jones,  18  Ch.  D.  109. 

2  6   B   549  ;    Drover   v.  Beyer.  13  (r)  Exp.  llillman,  10  Ch.  D.  022. 

Ch     D.    242.  49    L.    J-    37  ;    Exp.  Comp.  ante,  §  75. 

]\Iui'liead  2  Ch-  D.  22  ;  Patterson  =*Mialliet  v.  Brown,    103  Pa.  bt. 

V.  P'alterson,  1..  R.  2  P.  &  M.  189  ;  546. 

Dolphin  V.  Laylon.  4  C.  P.  D.  130.  ^9  piie  Sharpening  Co.  v.  Parsons, 

Comp.  also  under  the  stat.  of  set-  54  Conn.  310. 

off    Reniinglou  v.  Stevens,  2  Stia.  (d)  Siierwood   v.  Ray,  1  Moo.  P. 

l'>71  •  Francis  v.  Dodsworth,  4  C.  C.  353.     Sec    Ditcher    v.  Dcmsou, 

B~  2"b  per  Wilde,  C.J.;  Rawley  v.  11  .Moo.  P.  C.  324  ;  R.  v.  Brooks-, 

Rawley,  1    Q.  B.  D.  460;   and   see  2  C.  &  K.  402. 


f*j  77]  sujJ.ii;cT  MA rn.u  and  vhjkcv.  103 

'  pe:jd!n<;'' as  soon  as  tlie  cn'mlual  was  arrested  and  com- 
j:.ittcd.'°]  All  Act  wliicli  authorized  the  Court  hefore  which 
I  road  i7idiictineiit  was  "  preferred,"  to  frive  the  prosecutor 
lost?,  was  lield  to  authorize  the  ju(l<;e  to  give  them,  wlio  tried 
\he  indictment  at  Nisi  Prius  after  its  removal  into  the  Queen's 
Bench  (a);  for  tlie  technical  meaning  of  the  word  "  preferred," 
would  have  rendered  the  Act  nugatory  in  a  large  majority  of 
cases,  road  indictments  being  rarel}'  tried  at  the  Assizes  at 
which  they  are  "  preferred  "  {b) :  and  wdiere  the  construction 
according  to  the  technical  sense  would  make  a  statute  in- 
operative, whilst  giving  it  its  common  significance  would 
secure  to  it  a  i-easonable  operation,  the  latter  construction  is 
always  to  be  adoj^ted."  Thus,  under  an  act  which  declared 
"  that  all  real  estate  situate  in  P.  owned  and  possessed  by 
any  railroad  compan}',  shall  be  .  .  subject  to  taxation  for 
(;ity  purposes,  the  same  as  other  real  estate  in  said  city,"  was 
held,  not  only  to  include  street  railwa}'  companies,  but  to 
embrace  the  lands,  buildings  and  improvements  of  railroad 
companies,  though  essential  to  the  exercise  of  the  franchise, 
notwithstanding  such  property  is  technically  personalty." 
Any  other  construction  would  have  made  the  provision 
referred  to  practically  nugatory/'] 

§  77.  Where  judgment  was  "  recovered  "  for  5001.  on  a 
warrant  of  attorney  to  secure  an  annuity  of  30/.,  of  which 
only  15/.  were  due,  it  was  held  that  the  defendant  was  pro- 
tected from  arrest  by  the  enactment  that  no  person  should 
be  taken  in  execution  on  a  judgment  ''where  the  sum 
recovered  does  not  exceed  20/."  Though  technically  the 
judgment  was  '"recovered"  for  the  larger  sum,  the  sum 
really  recovered  was  under  20/.  {«).     The   Ilailway  Clauses 

40  II:irtnett  v.  State,  42  Ohio  St.  (b)  Per  Coleridge,  J.,  3  Q.B.  90G. 

568.     But  sec  State  v.  Arlin,  39  N.  "  Kobiusou  v.  Varnell,  1(5    Tex. 

II.  179,  that  a  prosefutiou  was  not  382;   and   see   Bish.,  Wr.  Laws,  § 

"  peiidinii'"  within  the  meaning  of  100. 

the  act  21  June.  1859,  changing  Uie  •»-  Pa.  R.  \X.  Co.    v.    Pittsburgh, 

punishment,  where  no  indictment  104  Pa.  St.  52"2. 

had   been  found,  l)iit    only  prelim-  •'^  But  see  tiie  very  excellent  dis- 

i nary  proceedings  instituted  before  senting  opinion  in  the  above  case 

a  magistrate.  by  Mr.    -lustiee   Green,    in    which 

(n)  l{.    V.    Pembridge,    3    Q.  B.  >ir.  Justice  Paxsou  concurred. 

901  ;    H.  V.  Preston,  7  Dowl.  593  ;  (<•)  7  ct  8  Vict.  c.  90,  s.  5;  John 

and    see    K.  v.  Papworth.  2   East,  son  v.  Harris,  15  C.  B.  357:  24  L, 

413  ;  R.  V.  Ipslones,  2  Q.  B.  216.  J.  40. 


104:  SUBJECT    MAITICU  AND  0I5JKCT.  [§   T7 

Consolidation  Act,  1845,  whicli,  wliilc  giving-  companies 
power  to  take  land  for  teni])oraij  ])nrposes,  provided  that 
they  should  not  be  exempted  from  '*  an  action  "  for  nuis- 
ance or  other  injury,  was  construed  as  not  limited  to  what 
were  technically  "actions,"'*  but  included  all  ])rocL'edings 
whether  at  law  or  in  equity  {a).  [Indeed,  the  word  "  actions  " 
in  a  statute  is  generally  held  to  embrace  suits  at  law  and  in 
equity  ;"  and  such  is  said  to  be  in  general  the  effect 
even  of  the  phrase  "at  law.""  Underan  act  providing,  that, 
if  in  any  actions  or  suits  judgment  should  be  given  for 
plaintiff  and  afterwards  reversed,  plaintiff  might  commence 
u  new  action  or  suit  within  one  year  from  the  reversal,  a 
suit  by  motion  was  held  included."  So  proceedings  in  the 
Orphans'  Court  were  held  to  be  within  the  meaning  of  the 
\vord  "actions"  as  used  in  an  act  relating  to  the  competency 
of  parties  to  actions  to  testify  therein."  And]  where  the 
Quarter  Sessions  were  empowered  to  order  "  the  party 
against  whom  an  appeal  was  decided,"  to  pay  the  costs  of 
the  successful  party  ;  it  was  held  that  the  prosecutor  who 
liad  procured  the  conviction  successfully  appealed  against, 
was  for  this  purpose  the  party  appealed  against,  though  he 
was  not  so  on  the  record,  or  formally,  nor  even  by  being 
served  with  notice  of  the  appeal  (l).  The  convicting 
justices  Avere  not  the  parties  appealed  against,  though  the 
Act  required  that  the  notice  of  appeal  should  be  served  on 
them.  The  word  "party"  has  even  received  the  sense  in 
which  it  is  sometimes  vulgarly  used,  of  "  person,"  when  it 
is  plain  that  Pai'liament  so  intended  it ;  as  in  the  Chancery 

^  I.  e.,  suits  at  law  :  McPike  v.  not  disqualify  a  witnes^s,  the  ^vords 

McPike,  10  111.  App.  333.  "suit  or  ])i'ocecdini>-  at  law" — in 

(a)  8   Vict.  c.  20,  s.  33;   Fenwick  the  proviso  to  that  section  the  word 

V.  East  London   R.  Co.,    L.  K.  2U  "action," — and  in  another  statute 

Eq.  544;  and  see  Wallcer  v.  Clem-  in  part  materia  the  word    "suit," 

euts,  15  Q.B.  104();  Hawley  v.  Haw-  being  used  in  rerereucc  to  the  same 

ley,  1  Q.  B.  D.  460.  subject  matter,  were  all  held  to  be 

^*  Corton  V.  Ball,   4i    Barb.  (N.  substantially  synonymous.      Com- 

Y.)453;   Lux    v.  Hairgin,  G9   Cal.  pare  ante,  ^  74. 

255  ;  Coatsworth  v.  Barr,  11  Mich.  ^s  McBride's  App.,  73  Pa.  St.  480; 

199.  Gysrer's  App.,  74  Id.  48  ;  Taylor  v. 

*^  Fleming  v.  Burgiu,  2  Ircd.  Eq.  Kelly,  80  Id.  95. 

(N.  C.)  584.               "  {b)  R.    V.    Hants.    1   B.    &    Ad. 

«  Lansdale  v.  Cox,  7. J.  J.  Marsh.  (i54  ;  II.  v.  Purdey,  84  L.  J.  M.  0. 

(Ky.)  391.     And  see  Calderwood  v.  4  ;  5  B.  &  S.  909.     See  R.  i\  Brad- 

Calderwood    38   Vt.  171,  where,  in  laugh,  3  &  3  Q.  B.  D.  &  47  &  48 

an  act  providing  that  inteiest  shall  L.  J. 


^§77)  SUBJECT   MATTICK    AM)  (jH.JIXT.  1<>5 

Aiuendiiicnt  Act  of  1852,  wliicli  ciuictuU  that  any  "party" 
who  made  an  affidavit  in  a  suit  should  be  hablu  to  cross-ex- 
amination (a).    [And,  whilst,  in  a  statute  rci^ulating  applica- 
tions for  change  of  venue,  tlie  term  "  party  "  was  held  to 
signify  all  the  plaintiffs,  or  all  the  defendants  in    an   action, 
in  a  statute  relating  to  the  challenging  of  jurors,  each  of  the 
several  defendants,  acting  upon  separate  defences,  is  to  be 
deemed    a   "party.""]     The  17  Geo.  3,  c.  2G,  which,  after 
requiring  the  registration  of  annuities,  to  check,  as  the  pre- 
amble states,  the  pernicious  ])ractice   of   raising  money   by 
the   sale    of    life    annuities,    except     annuities    charged  on 
lands  whereof  the  grantor  is  "  seized  in  fee    simple  or  fee 
tail    in     possession,"    was    construed    as    including    in    this 
exception  a  person  who  was  tenant  for   life   with   a  general 
power    of    appointnunit ;    for   such    a    person,    though   not 
technically  a  tenant  in  fee  simple,  is  substantially  so,    since 
he  is  the  absolute  owner  of  the  property  (h).     Although  the 
word"  children"    is   confined    technically    to     legitimate 
diildren  (c)  it  would  be  construed  as  including  illegitimate 
children,  when  such  seemed  to  be  more  consonant  to  the 
intention.     Thus,  the  Marriage  Act,  26  Geo.  2,  c.  33,  which 
declared  void  the  marriage  of  minors  without  the  consent 
of  their  parents  or  guardians,  was  held  to  apply  to  illegiti- 
mate children,  since  clandestine  marriages  by  them   were 
within  the  mischief  which  it  was  the  object  to  remedy  {d); 
and  the  4  &  5  Ph.  &  M.  c.  8,  s.  3,  which  made  it  penal  to 
take  an  unmarried  girl  under  sixteen  from  the  possession  of 
her    parents,    against  their  will,   was  held  to  apply  to  the 
taking  of  a  natural  daughter  from  her  putative  father  (e). 

(a)  15  &  16  Vict.  c.  80,  s.  40  :  Re  tlie  meaning  of  the  bankruptcy  act 
Quartz  Hill  Co.,  21  Cli.  D.  642.  so  as  to   anlliorize  an  order   com- 

■'«  Ivupp   V.  Swineford,  40  Wis.  pellinii"  its  payment  to  the  trustee.] 

28.  (c)  i{.  V.  Helton,  Burr.  S.  C.  187, 

(b)  Halsey  v.  Hales,  o  T.  R.  194.  2  Sua.  1108  ;  R.  v.  Uirmingliam.  8 
€omp.  Leach  v.  .Jay,  L.  R.  9  Ch.  Q.  B.  410;  R.  r.  IMaude.  2  Dowl. 
D.  42,  47  L.  J.  870.'  [A  voluntary  N.  y.  58;  Simmons  r.  Crook,  L. 
allowance  granted  by  the  Secretary  R.  6  II.  L.  205.  [Technically 
of  Stale,  for  India,  to  an  ollieer  o"f  "  ne.\t  of  kin  "  includes  only  legili- 
the  Indian  army  on  his  compul-  male  persons  :  .McCool  v.  Sniilli,  1 
sorv  retirement,  to  which    the   re-  Black   459.] 

cipient   has   no  chiim.  and  which  (^0  I^-  '''•   Hodnett.  1   T.   R.   90; 

may  be  withdrawn  at  the  discretion  and  see  R.  v.  St.  Giles,  11   Q.   B. 

of  'the    Secretary,    was,    in    Exp.  17o  ;  R.  r.  Brighton,  1  B.  &  S.  447, 

Webber,    L.  li.    18  Q.  15.   1).   HI,  J30  L.  .1.  M.  C.  197. 

held  not  to  be    "income"   within  (<?)  R.    y.  Cornforth,  2  Stra.  1162. 


lOG  SUBJECT    MATTEU   AND  OIJJ  EOT.  [§§78-79 

[And  SO  the  words,  "  iiilierit,"  "  lioirs," '"joint  heir,"  in  a 
statute,  were  construed    to  euil)race  illegitimate  children." 
§   78.   Ordinary  Meaning  Preferred. —  [Indeed,  it    is  probablj 
not  inaccurate  to  say  that,  as  between   two  meanings   of  a 
word,  the  ordinary  and  popular  meaning  is,  in   general,  to 
be  preferred,"  and  is  most  frequently  in  harmony  with  the 
subject    matter     and    object    of    the     enactment.     A    few 
additional  illustrations  will  suffice  to  elucidate  this  subject. 
Thus  the  word  "state,"  in  an  act  of  Congress  may  include 
a  territory  f''  and  in  a  state  statute  of  limitations,  the  phrase 
"beyond  seas,"  borrowed  from  the  English  law,  has  been 
construed  to  mean  "out  of  the  state  ;""  whilst  in  Pennsyl- 
vania it  lias  been  held  to  mean   "  out   of  the  limits  of  the 
United  States,"  the  saving  of  a  right  of  action    in   favor  of 
persons  beyond  seas  being  considered  intended  to  operate  in 
favor  of  persons  in   a   foreign   country,  not  of  citizens  of 
another  state,  who  are  under   a  common   government,  and, 
by  the  provisions  of  the  federal  constitution,  entitled  to  the 
privileges  of  citizens  of  the  several  states."      Under  an   act 
providing,  that,  to  enable  a  mechanic  or  other  person  fur- 
nishing   material   or  performing    labor    to   a  contractor,  to 
acquire  a  mechanic's  lien,  he  must  at  or  before  the  time  he 
furnishes  the  material   or  performs  the  labor,   notify   the 
owner  or  liis  agent,"  etc.,  it  was  held  that  a  verbal  notifica- 
tion was  all  that  could  be  required,  such  being  the  general 
significance  of  the  word  "notify."'' 

§  79.  [A     township    in   Peimsylvania    being    unable  to 

Comp   Dorin  v.  Dorin,  L.  11.  7  II.  Cobleigh.  13  N.   II.  79  ;  Panroast 

L   508  •  Dickinson  «.  N.  K.  li.  Co.,  v.   Addison.  1   II.  &  .1.  (.Md.)  320  ; 

3 "  II    &  C    73.3,  33  L.  J.  91  ;   Be  Richardson  v.  Kiclmrdson,  (i  Oliio. 

Wri'dit    2  k   &.!.  r.95.  125;  AVest    v.   Pickcismcr,    7   Id. 

50  Sw'iinsou  V.  Swanson,  2  Swan.  P.   ii,  235  ;   Slepliensou   v.  Doe,  8 

Tenn  )  446  Black f.  (hid.) 508  ;  Foil)c.s  v.  Foot,  2 

"   Sec     Sclirifer     v.     Wood,     5  .McCord  (S.  C.)  331  ;    .lohnslon   v. 

Blatcld-.  215  ;  Mayor  of  Wctunipka  White.  T.  UP   Charlt    (G:i.)  140  ; 

V     Winter    20  Ala.    G51  ;   Gyi;er"s  Dcnliam  v.  ilolcman,  20  Ga.  182  ; 

Est     Co  Pa.  St.  311  ;  Parkinson  v.  Field  v.  Dickenson,   3    Ark.   409  ; 

State    14  ^id     184  ;  and  cases   in  Wakelield  v.  Sniarl,  8  Id.  488. 
nole-'toli^  2  76.  "  Ward  v.  Ilallam,  2  Dall.  (Pa.) 

"  Re  Bryant,  Deady,  118.  217  ;  1  Yeates.  329  ;   Thnr.stm)  v. 

M  Murray   v    Baker,  3   Wheat.  Fisher,  9  S.  «&  K.  (Pa.)  238  ;  Kline 

541  •  Shelby  v.  Guy,  U  Id.   361  :  v.  Kline,  20  Pa.  St.  503  ;  Gonder 

Baniv  of   Alexandria  v.   Dyer,   14  v.  Eslabrook,  33  Id.  3.4  ^ 

Pet     141-    Faw   v     lloberdeau,    3  "  yjnton  v.  Builders,  &c.,  Ass  n, 

Cranch   174  ;  Iluiigles  v.  Keeler,  3  109  Ind.  351.     See  ante,  §  35. 
John.s.  '(N.    Y.)  "263:   Gahisha    v. 


^  79]  SUBJECT    MATTKIi  AND  OBJECT.  107 

procure  volunteers  under  the  Bounty  law  of  ISGi  for 
$300,  the  citizens  voluntarily  advanced  money  to  pay 
houtities  beyond  that  amount,  with  tlic;  uiHU-rstandiiii^  that 
it  was  to  be  repaid  when  an  act  should  be  passed  authuriz- 
iui^  taxation  to  rcp;iy  the  same.  An  act  was  passed,  in 
18G5,  authorizing"  taxation  to  repay  all  "  hnms  made  in  f^ood 
faith, "and  it  was  held  that  the  term  "  loans"  should  be  con- 
strued, not  in  its  technical  sense,  as  "  debts  contracted  by 
persons  authorized  to  borrow  the  nioney  and  make  the 
township  responsible,"  but  as  having  reference  to  all  claims 
upon  the  conscience  and  moral  sense  of  the  community 
relieved  by  the  contribution  referred  to.'""  So  it  was  held 
to  be  no  objection  to  the  defense  of  usury,  in  New  Jersey, 
that  the  mortgage  sought  to  be  foreclosed  was  given  in  part 
of  the  purchase  money,  and  not  for  a  technical  loan  or 
lending."  The  phrase  "legal  representatives,"  in  an  act 
relating  to  land  was  construed  as  sj'nonymous  (as,  in  popular 
usage,  it  may  be  said  to  be,)  with  "  heirs  and  assigns."" 
The  word  "connection'"^'  as  applied  to  societies,  is  hold  to 
mean  any  relation,  organic  or  conventional,  by  which  one 
society  is  linked  or  united  to  another.'"  Asapplied  to  railwa3'S 
its  con^mon  and  poi)ular  significance  is  such  an  arrange- 
ment that  freight  and  ]>assengers  can  be  conveniently 
passed  from  one  to  the  otiier  by  transition  of  cars  or  other- 
wise.'' And  a  "  branch  railroad,"  authorized  by  an  act  to 
be  built,  was  held  to  include  a  short  elevated  railroad  from 
the  terminus  of  the  main  railway  to  another  point."  The 
phrase  "  laying  out  "  as  used  in  a  statute  relating  to  high- 
ways, includes  not  only  the  initiatory  act  of  laying  out  the 
road  by  the  selectmen,  but  also  the  acceptance  of  the  survey 
by  the  town  and  the  recording  thereof ;"  and    in  an   act 

•'■6  Wcistor  V.  Hade,  53  Pa.    St.  «»  Allison    v.    Smith,    16    Mich. 

474.  Si-e  ante,  ^  76.  405. 

"  Diercks  v.  Kennedy,  16  N.   J.  «'  P.  &  R.   R.   R.  Co.   v.    Cata- 

Eq.  210.  wissa.  &c.,  R.  R.  Co.  53   Pa.   St. 

6«  Coni'th  V.  Bryan,  6  Serg.  &  R.  20. 

(Pa.)   81.         See   also   Duncan    v.  «' McAboy's  App.,  107  Pa.    St. 

Walker,  2  Dall.  (Pa.)  205.     Comp.  548. 

Warnecke  v.    J.enibea.   71   111.   <J1,  «^  Wolcoll    v.    Pond,   19   Conn, 

that   legal  or  personal   representa-  507.     Tiiis  interpretation   was  put 

lives  may  mean  heirs,  ne.xt  of  kin,  on  the  giouiul  ol'  liberal  eoustruc- 

descendants.  lion   ot'   a   remedial   and   publiclj^ 

=•»  1  Mich.  Comp.  L.,  §  2032.  benefioial  act. 


,j_08  SUBJECT   MATTER  AND  ODJKCT.  [§  T9 

•  allowing  a  bounty    to    "any   person   liable  to   draft,"   wlto 
sliould  furnish,  etc.,   a   substitute,    the   phrase    "liable    to 
draft"  was  held  to  refer  to  the  whole  process  of  drafting, 
not  merely  to  the  drawing  of  the  name    from   the  wheel, 
and  to  apply,  not  only  to  enrolled   men,  not  yet  drawn,  but 
to  drafted  men  as  well."'      So,    a    "  bridge  "    includes    the 
necessary  abutments."     And  in  its  popular  sense  a  bridge  is 
viewed  as  the  means  for  passage  of  persons,  cattle,  etc  ,  so 
that  a  prohibition  in  a  grant   to  a  bridge   company  against 
the  building  of  a  bridge  within  a  mile   of   the  toll   bridge 
provided  for  in  the  charter  was  held  not  to  include  a  rail- 
road bridge,""  and  a  statute  making  "  all  bridge  structures" 
across  any  navigable  stream    forming   the   boundary  of  the 
state  assessable  as  real  estate  in  the  county  whore  located 
was  held  inapplicable  to  bridges  constituting  a  railroad  track 
exclusively."'       A    barn,    not   connected    with  the  mansion 
liouse,  but  standing  alone,  several  rods  distant  from  it,  may 
be  an  outhouse,"'  and    one  standing   eighty    feet   from  the 
dwelling  house,  in  a  yard  or  lawn  between  which  and  the 
house  there  was  communication  by  a  pair  of  bars,  may  be 
embraced  under  the  term    "  curtilage,""' within   the   mean- 
ino-  of  an  act,  its  object  :ind   subject    matter.       The    term 
"  misdemeanor"  in  Wisconsin,  Acts  1860,  ch.  196,  was  held 
not  to  denote  a  criminal  offence,  but  a  trespass  by  the  sheriff 
in  his  official  capacity.'"    An  act  enabling  married  women  to 
acquire  land  by  "grant,"  includes  a  ])ower  to  purchase  by 
deed  of  bargain  and  sale."     The  word   "  destroy,"  in  an  act 
of  Congress  punishing   with   death   a  person   dcistroying  a 
vessel,  means  to  unfit  her  for  service,  beyond  the  hopes  of 

s*  Greffsr  Tp.  v.  Jamison,  5.j  Pa.  Ibid. 
St   408  "*  ^'=^^^  ^-  Brooks.  4  Conu.  446. 

«  Tolland      v.    Willington,     2G         "^  People    v.     Taylor,    2    Mich. 

Conn.    578.      And  see   Linton   v.  250. 

Shavpsburg  Bridge.  1  Grant  (Pa.)         ^«  Stale  v.  Man.,,  21  AVis  C84 
414  •'  McVey  v.    Ry.    Co.,  42   Wis. 

«'i  Lake   v.   R.    R.    Co.,    7   Nev.  532.     The  word  '"'grant "  is  not  a 

294  •  Brid-'-e  Co.   v.  Iloboken,  etc..  tcehnieal  word,  like.e.  (/.."eufeolT" 

Co  'iSIsfj.  Eq.  81;S.  C.,1  Wall,  and    may   import    a   grant     of   a 

'lie,'  naked    power,    as    well   as   of   an 

"Anderson  v.   R.  R.    Co.,    117  interest  or  litle  :  Rice  v.  R.  R.  Co., 

111.  2(J  ;  and  it   was  deemed  imina-  1  Black,  358.      As  to  effect  of  tha 

terial,  as    elTceting   this    queslion,  word  "  gift  "  as  including  convey 

that  such  bridge  was  built  by  the  ance  for  consiileration,  see  Chai> 

•company  in  excess  of  its  powers  :  man  v.  Miller,  128  Mass.  2G9. 


§  SO]  SUBJECT   MATTER  AND    OBJECT.  lOO' 

recover}',  b}'  ordinary  means,  and  includes  easting  away." 
Nor  are  "prize  and  capture"  limited  to  captures  at  sea." 

§  80.  ["  Sittings,"  in  the  Oregon  territorial  act  of  10  Dec, 
1850,  were  held  to  mean  "term.""  "  Children,"  in  a  statute 
of  distributions,  aiming  at  the  equal  division  of  an  intes- 
tate's estate,  will  include  grand-childi'en,  so  as  not  to  dis- 
inherit the  offsprit)g  of  a  deceased  child  ;"  while  the 
"  ancestor  from  whom  the  estate  came"  has  been  held  to 
mean  the  next  ancestor."  A  bank  discounting  a  note,  whilst 
not  technically  or  literally  the  assignee  of  the  note,  is  such 
nevertheless  within  the  meaning  of  a  statute  excepting,  from 
its  provision  removing  the  incompetency  to  testify  on  the 
score  of  interest,  the  case  in  which  the  assignor  of  the  con- 
tract or  tiling  in  action  is  deceased,  so  as  to  leave  its  stock- 
holders under  disability  where  the  maker  of  the  note  lias 
died."  Under  an  act  which  provides  that  the  words  "grant, 
bargain  and  sell,"  in  a  deed,  are  to  be  construed  as  a 
covenant  of  seisin,  of  q;iiet  enjoyment,  and  against  incum- 
Jrances,  only  such  incumbrances  are  intended  as  alTect  the 
title,  not  such  as  affect  the  physical  condition  of  the  land, 
as  roads  and  the  like."  So,  in  ordinary  parlance,  there  is  a 
distinction  between  "  sell "  and  "  give,"  which  will  be 
regarded  in  t lie  construction  of  those  words  in  a  statute; 
the  former  meaning  a  transfer  for  a  valuable  consideration, 
the  latter  a  gratuitous  transfer,  without  any  equivalent." 
Again,  the  i)rovision,  in  an  act,  invalidating  all  bequests, 
etc.,  made  to  charities  within  one  calendar  month  of  the 
donor's  death,  relates  only  to  the  physical  act  of  executing 
the  deed  or  will,  and  not  to  the  date  from  which,  for  certain 
purposes  and  in  the  fiction  of  the  law,  the  will  is  presumed  to 
speak  ;  so  that  the  addition,  within  one  calendar  month  of  the 
testator's  death,  of  a  codicil  to  a  will  executed  more  than 
one  calendar  month  before   that  event,  diminishing  such  a 

■•-  U.  S.  V.  Johns,  1  Wash.  363  ;  lion  of   "nextof  kia"  as  exclud- 

4  Dal  I.  413.  iiiff  representation. 

"  U.    S.    V.    Athens  Armory,   2  "  Foster  v.  Collner,  107  Pa.  St. 

Abb.  U.  S.  305.  305. 

■i^  Gird  V.  State,  1  Ores?.  308.  ■"*  3Icmmert  v.  3IcKcen.  113  Pa. 

"  Eblielmau's  App.,   74  Pa.   St.  St.  310.     Compare  Stiunbauffli  v. 

46.  Smith,  23  Ohio  St.  584. 

'«  Clayton  v.  Dralie,  17  Ohio  St.  "  Parkinson  v.    State,    14    Md. 

367.    Sec  same  case  upon  construe-  184. 


110  SUBJECT    MATTER  AND  OBJECT.  [§81 

bequest  made  therein  and  otherwise  disposini^  of  certain 
portions  of  the  estate,  will  not  invalidate  the  gift,  upon  any 
theory  of  constructive  republication.*"'  Similarly,  a  child 
born  out  of  lawful  wedlock  before  the  date  of  the  father's  will, 
but  rendered  legitimate,  by  the  force  of  a  general  statute,  by 
the  subsequent  marriage  of  its  ])arents  after  the  date  of  the 
will,  is  not  an  after  born  child  within  the  meaning  of  an  eai'lier 
act  which  provides,  that,  where  a  person,  having  made  a  will, 
afterwards  marries  and  has  children  not  provided  for  in  said 
will,  and  dies  leaving  a  widow  or  child,  he  shall,  so  far  as 
regards  the  widow  or  after-born  children,  be  deemed  to  die 
intestate,  this  provision,  according  to  its  plain  and  unambigu- 
ous meaning,  referring  to  physical  birth,  not  legislative  legiti- 
mation, after  making  the  will.*'  Thus,  too,  the  employment 
of  a  person  in  the  United  States  service,  with  the  rank  of 
colonel,  the  employment  not  being  in  a  military  capacity, 
will  not  entitle  him  to  a  pension  underact  of  1832.*^  Perhaps 
more  than  in  any  other  case,  "  where  particular  terms  are 
used  to  describe  objects  of  taxation,  they  should  be  construed 
according  to  their  popular  acceptation,  not  by  any  refined  oi- 
strained  analogies,  and  especially  where  that  acceptation 
corresponds  with  the  use  of  those  terms  in  recent  legisla- 
tion ;"'*'  so  that  a  statute  imposing  a  tax  upon  ground  rents 
docs  not  authorize  a  tax  on  a  widow's  interest  in  land  secured 
to  her  in  a  proceeding  in  partition  where  the  eldest  son 
accepts,  although  her  interest  is  in  the  nature  of  a  rent 
charge.** 

§  81.  Rules  of  Grammar.— [As  the  technical  construction  of 
the  ^vords  themselves  may  have  to  give  way  to  a  more  in- 
artificial interpretation,  so  the  technical  rules  of  grammar 
may,  in  the  construction  of  sentences,  bo  overridden  by  a 
more  common-sense  reading,    based  upon  consideration  of 

80  Carl's   App.,  106  Pa.  St.  635.  from  the  testator's  death  :  lb.  at  p. 

The  iict  refers  to  the  sij^ning  and  043. 

attesting  as  the  acts  whieh  are  to  8'  McCulloch's  App.,  113  Pa.  St. 

precede  death  by  at  least  one  cal-  24:7. 

endar  month  ;  and,  if  the  construe-  »- ^nsart  v.  U.  S.,  15  Leg.    Int. 

tion  above  stated  were  not  correct,  318.     See  post,  §  00,  note  131. 

there      could     be    no     charitable  ^^  Deitz  v.  Beard,  2  Watts  (Pa. ) 

bequest  at  all.  where,  by  statute,  170. 

the   will   is   declared   to   spe:di  as  *■*  lb. 


§82]  SUBJECT    MATTF.U    AND  OIUKCT.  Ill 

the  object  and  subject  matter  of  tlie  act,  tlian  could  result 
•from  their  strict  application.  "  The  grammatical  construc- 
tion of  a  statute  is  one  mode  of  interpretation.  But  it  is  not 
the  only  mode,  and  it  is  not  always  the  true  mode.  We  may 
assume  that  the  draftsman  of  an  act  understood  the  rules  of 
grammar,  but  it  is  not  always  safe  to  do  so."*^  Thus,  where 
an  act  prescribed  that  tlie  Register  should  issue  letters  of 
administration  to  the  widow,  if  any,  or  to  such  of  the  rela- 
tions or  kindred  of  the  decedent  as  by  law  might  be  entitled 
to  the  residue  of  the  estate,  etc.,  and  then  ]iroceeded  :  "  or 
he  may  join  with  the  widow  in  the  administration  such 
relation  or  kindred  ...  as  he  shall  judge  will  best  adminis- 
ter the  estate,  preferring  always,  of  those  so  entitled,  such 
as  are  in  the  nearest  degree  of  consanguinity  with  the 
decedent,"  etc.,  it  was  held  that  the  phrase  "preferring 
always,"  etc.,  applied  not  only  to  the  joint  administration 
with  the  widow,  but  also  to  cases  where  there  was  no  widow, 
or  where  she  renounced  ;  i.  e.,  to  the  first  clause,  as  well  as 
to  the  second,  separated  from  the  former  bj'  a  semi-colon, 
although,  it  was  intimated,  the  rule  of  strict  grammatical 
construction  would  have  applied  the  phrase  in  question  to 
the  last  clause  only."' 

§  83.  [So,  the  use  of  the  future  tense  in  a  statute  does 
not  necessarily  prevent  it  from  having  a  present  operation. 
An  act  of  Congress  directing  that  certain  lands  "  shall  be 
given"  to  certain  persons,  was  construed  as  an  absolute 
donation  and  as  conferring  a  present  right  uj^on  the  bcne- 
iiciaries."  The  description  in  a  statute  of  a  cause  of  action, 
"if  any  damage  shall  happen,"  does  not  obviate  the  a])j)li- 
cation  of  the  act  to  an  existing  case  stated,  if  such  an  inten- 
tion otherwise  appears.**  The  phrase  "who  shall  come'' 
into  the  state,  was  construed  to  include  a  married  woman 
Avho  had  already  come  into  the  state  when  the  act  was 
passed.*" 

85  Fisher  v.  Connard,  100  Pa.  St.  8^  Rutlierford     v.       Greene,     3 

63,  GO,  per  Paxson,  J.  Wheat.  lt)6. 

86Gyger's  Est.,  05  Pa.   St.   311         88  LmiiHgtoQ  y   u.  S.,    15  Ct  of 

(where,  also,  tlie  word   "always"  CI.  453. 

was  held  to  mean   "in  all  cases).  89  j\[.iygvj]]p_   g^^  _   j^    jj  q^    ^ 

Compare  post,  §§  414-415.  Herrlck,  13  Bush.  (Ky.)  123. 


112  SUBJECT    MATTER  AND  OBJECT.  [§  83 

[Conversely,  wlien  an  act  declared  a  forfeiture  of  dower 
or  curtesy  "  whenever  a  married  man  shall  be  deserted  by 
his  wife,  or  a  married  woman  by  her  husband,  for  the  space 
of  one  year,"  it  was  given  only  a  prospective  operation, 
applying  to  cases  of  desertion  beginning  after  the  statute 
took  effect.""  x\nd  where  an  act,  not  going  into  effect  until 
a  future  day,  declared  certain  results  in  all  cases  in  which 
certain  things  "shall  have  been  done,"  it  was  held  applicable 
only  to  cases  arising  after  the  date  when  the  act  was  to 
become  operative." 

§  83.  Commercial,  etc.,  Terms. — [A  Statute  applicable  to  U 
large  trade  or  business  should,  if  possible,  be  construed,  not 
according  to  the  strictest  and  nicest  interjM-etation  of  the 
language,  but  according  to  a  reasonable  and  business  inter- 
pretation of  it,  with  regard  to  the  trade  or  business  with 
which  it  is  dealing.""]  In  a  Custom's  Act,  which  imposes 
duties  on  imported  commodities,  the  articles  specified  would 
generally  be  understood  in  their  known  commercial  sense  (a). 
[Such  laws  are  intended  for  practical  use  and  application  by 
men  engaged  in  commerce."  They  "  tax  things  by  their 
common  and  usual  denominations  among  the  people,  and 
not  according  to  their  denominations  among  naturalists,  or 
botanists,  or  men  in  science.""*  Hence  the  designation  of  an 
article  of  commerce  by  merchants  and  importers,  when  it  is 
clearly  established,  determines  the  construction  of  a  tariff 
law  in  which  that  article  is  mentioned."^]  Thus,  "Bohca" 
tea  was  undeivstood  to  mean,  not  the  pure  and  unadulterated 
ai'ticle  to  which  the  name  strictly  belongs,  and  which  alone 
is  known  by  it  in  China  ;  but  all  teas  usually  bought  and 
sold  at  home  as  Bohea  {h).     [And  under  a  statute  imposing 

9»  Giles  V.  Giles,  22  Minn.  ^48.  g  80.  Deitz  v.  Beard,    2  W.  (Pa.) 

91  Dewart  v.  Purdy,  2!)  Pa.  St.  170.] 

113.     As  to  tlie  class  of  cases  of  '^  Elliott  v.  Swartwout,  10  Pet. 

construction  falling,  as  these  did,  137. 

under    the    presumption     against  9*  jj    g_  y_  Breed,  1  Sumn.  159,. 

retrospective  operation,    see    this  per  Story,  J.,  at  p.  164. 

subject,  post,  §^  271  et  seq.  "^  Arthur  v.  Morrison,  96  U.  S. 

9^  The  Danclm,  L.  R.    9  P.    D.  108.     See  also  Curtis  v.  Martin,  ;) 

171,  per  Brett,  M.  R.  How.  106. 

(a)  Atty-Gen.   v.    Bailey,    1  Ex.  (b)  Two  hundred  chests  of  tea,  9 

281;     Elliott    v.     Swartwout,    10  Whent.    430;     '-Gin,"    Webb    v. 

Peters.    137.     [Roosevelt  r.    Max-  Kniiiht,  2  Q.  B.  D.  530  ;"  Spirits." 

■well,  3  Blatchf.  391.     Cornp.  ante,  Atty"-Gen.    v.   Bailey,  1   Ex.    281  ; 


§§  84,  85]  SUBJKCT    MATTKli  AND  OBJECT.  113 

a  certain  dntj'  upon  "silk  veils,"  etc.,  and  another  upon 
"  manufactures  of  silk,"  etc.,  not  covered  by  former  enumer- 
ations, it  was  held  that  "crape  veils"  were  included  in  the 
latter,  and  not  in  the  former,  although  admittedly  manufac- 
tured entirely  of  silk." 

[The  rule,  however,  works  both  ways  ;  anil  whilst  it  in- 
cludes what  is  connnonly  covered  by  the  commercial  sense 
of  the  term,  it  excludes  what  is  not  so  covered.  Thus  it 
was  held,  that,  in  order  to  permit  the  entry  of  a  certain 
article  under  a  certain  denomination,  it  must  have  been 
previously  known  by  that  name  in  commerce."  And  the 
rule  is  subject  to  this  limitation,  that,  if  it  appears  that  the 
Legislature  intended  something  different  from  the  usual 
meaning,  as,  e.  g.,  where  the  word  has  been  used  in  a  different 
sense  in  a  former  tariff  act,  that  intention  must  prevail,*'] 

§  84.  Meaning  Differing  in  Different  Localities.— Where  a  stat- 
ute applied  to  the  United  Kingdom,  and  the  technical  mean- 
ing of  words  differed  in  the  different  Kingdoms,  the  lan- 
guage would  be  taken  in  its  popular  sense  {a). 

§  85.  Meaning  of  words  at  Date  of  Enactment.— [The  rule 
which  requires  the  construction  of  statutes  with  reference 
to  their  ol)jeets  and  subject  matters,  obviously  also  requires] 
the  language  of  a  statute,  as  of  every  other  writing,  to  be 
construed  in  the  sense  which  it  bore  at  the  period  when  it 
was  passed  (Jj).  [An  act  of  Parliament  spoke  of  "  bread 
usually  sold  as  French  or  fancy  bread,"  and  it  was  at  first 
held  by  two  out  of  tliree  judges  that  this  phrase  was  not  con- 
lined  to  bread  usuall}''  sold  under  that  denomination  at  the 
time  when  the  act  was  passed.'"  But  subsequently  the  con- 
trary    view     of    the    dissenting    judge    was    approved.'"" 

[where  it  was  held  that  the  word  Pennsylvnnia,,  and  not  to  include 

"spirits"   (lid  not   include  sweet  spirits    maniifaotured    in    anotlier 

spirits  of  nitre.    And  see,  as  to  the  state  and  roctitied  in  Pennsylvania. 

phrase    "ad   valorem, "   U.    S.    v,  (a)  tSaltoim  d.  Advocate-General. 

Clement,  Crabbe,  4!)0.]  3  IMiicq.  Got).     [But  see  as  to  usage 

^^  Arthur  v.  31orrison,  supra.  in  dillVrcnt  localities,  jjost,  §  363.] 

"  U.  S.  V.  Sarchet,  Gilp.  273.  {b)  See  ex.  ,i;r.  St.  Cross  v.  liow- 

8*  Roosevelt      v.      Maxwell,     3  ard,  G  'V.  H.  338  ;  and  see  further 

Blatchf.  391.     And  see  Com'th  v.  int.  i;ii  357  seq. 

Gillinan,    G4    Pa.    St.    lUO,  104-5,  ^^  li.  v.  Wood,  L.  R.   4   Q.    B. 

where  upon  ihat  ground  "  domestic  559. 

distilled  spirits"  were  held  to  mean  '<"*  grated  Bread  Co.   v.  Gregg, 

spirits    distilled    in    the    state    of  L.  R.  8  Q.  B.  355. 


114  SUBJECT   MATIER  AND  OBJECT.  [§  85 

Undoubtedly,  all  laws  uiust  be  executed  accordini^  to  the 
sense  and  meaning  they  imported  at  the  time  of  their  pas- 
sage."' Henc9,  wliere  an  act  gave  a  railroad  company  the 
n-ight  to  build  a  railway  from  a  certain  borough  then 
Tjonnded  by  a  certain  line,  and  tlie  borough  was  subsequently 
extended  beyond  that  line,  the  Court  said  :  "  We  are  very 
■clear  that  this  alteration  of  the  borough  lines  did  not,  in  the 
least  chano;e  the  rights  or  obi  ideations  of  the  railroad  com- 
pany.  .  .  The  amendment  of  one  [law,  i.  e.,  that  fixing  the 
borough  limits]  is  not  to  be  taken  as  a  supplement  to  the 
other."""  Conversely,  where  a  turnpike  charter  prohibited 
the  erection  of  a  toll-gate  within  tlie  town  of  T.,  whilst  it 
;\vas  left  undecided  whether  it  meant  the  then  limits,  or  the 
limits  as  they  might  be  extended,'"  it  was  held  clear  that 
an  amendment  to  such  charter  giving  the  right  to  extend 
the  turnpike  to  a  (,'ertain  street  within  the  city  limits,  pro- 
vided no  toll-gate  be  placed  within  the  city  limits,  meant 
the  limits  as  then  existing.'"*  The  obligation  imposed  upon 
a  canal  company  by  its  charter,  as  to  bridging  roads  crossed, 
refers  to  roads  in  existence  at  the  time  of  incorporation.'" 
Where  an  act  was  passed  to  take  effect  on  the  first  day  of 
the  succeeding  May,  which  contained  a  reference  to  the 
Code  of  Practice;  and,  after  the  passage  of  the  act,  and 
before  the  day  when  it  was  to  take  effect,  a  new  code  was 
adopted,  itself  to  go  in  effect  on  the  first  day  of  May, — it 
was  held  that  the  act  must  be  construed  to  refer  to  the  Code 
in  use  at  the  time  of  its  passage.'"" 

101  Com'th  V.  R.  R.  Co.,  27  Pa.  '"^  Morris  Ciinul,  etc.,Co.  v.  Slate, 

St.  339,  353    And  sec   Mobile   v.  24  N.  J.  L.  02. 

Eslava,  10  Pet.  234  ;  and  compare  ""i  Griswold_  v.  Atl.  Dock    Co., 

Amer.  Fur  Co.  v.  U.  S.,  2  Id.  358.  21  Barb.  (N.  Y.)  225.     That,  liow- 

10*   Com'th    V.    11.    R.    Co.,    iil)i  ever,  to  some  extent,  a  change  in 

supra.     See  to  similar  effect  Pont-  the  circumstances  of   the  people, 

chartrain  Co.  v.  Lalayelte,  10  La.  willi  rel'erenee  to  which  an  act  was 

An.  741.  passed,  may  affect  its  construction, 

'0^  Compare,  however,  Collier  v.  ought   probably   to   be   conceded. 

Worth,  L.  li.  1  Ex.  D.  4G4,  where  'I'hus,    wliere,    in   1833,    the   pro- 

the    mention,    in   an    act,    ot    the  visions  of   the   marriage  hiws  of 

■"  town  of  Rochdale  "  was  held  not  Pennsylvania,  enacted  in  1700  and 

conhned  to  the  town  as  it  existed  1729.    came    before   the    Supreme 

when    the    act  was    passed,    but  Court  for  construction,  it  was  said 

including      streets      subsequently  that    many    of    their    provisions, 

added.  "though      doubtless      wholesome 

1"^  Detroit  v.  Detroit,  etc.,  Co.,  when    they   were  enacted."   w(!re 

13  Mich.  333.  "ill    adapted   to   the    habits    and. 


§§86-87]  SUBJECT   MATTEI^  AND  OBJECT.  115 

[Upon  the  principle  etatcd  seems  to  rest  the  rule,  that  an 
act  adopting  by  reference  the  whole  or  a  portion  of  another 
statute,  means  the  law  as  existing  at  the  time  of  the  adop- 
tion, and  does  not  adopt  any  subsequent  addition  thereto  or 
modification  thereof.'"] 

§  8G.  Restriction  of  General  Words  to  Subject  Matter. — But  it 
is  iu  the  interpretation  of  general  words  and  phrases  that 
the  principle  of  strictly  adapting  the  meaning  to  the  partic- 
ular subject  matter  in  reference  to  which  the  words  are 
used,  finds  its  most  frequent  application.  However  wide  in 
the  abstract,  they  are  more  or  less  elastic,  and  admit  of 
restriction  or  expansion  to  suit  the  subject  matter,"*  While 
expressing  truly  enough  all  that  the  legislature  intended,  they 
frequently  express  more,  in  their  literal  meaning  and  natu- 
ral force  ;  and  it  is  necessary  to  give  them  the  meaning  which 
best  suits  the  scope  and  object  of  the  Statute,  without 
extending  to  ground  foreign  to  the  intention.  It  is,  there- 
fore, a  canon  of  interpretation  that  all  words,  if  they  be 
general  and  not  express  and  precise,  are  to  be  restricted  to 
the  fitness  of  the  matter  {a).  They  are  to  be  construed  as 
particular  if  the  intention  be  particular  (b)  ;  that  is,  they 
must  be  understood  as  used  in  reference  to  the  subject  mat- 
tor  in  the  mind  of  the  Legislature,  and  strictly  limited  to 
it. 

§  87.  "Persons,"  and  other  General  Words. — Thus,  enact- 
ments, which  related  to  "  persons "  would  be  variously 
understood,  according   to   the    circumstances  under    which 

customs  of  society  as  it  now  ^"^  Somcrsot  v.  Ditjhton,  12  Mass. 
«'\ists,"  and  they  were  accordingly  382;  Whitney  v.  "Whitney,  14  Id. 
held  directory  "only  :  Kodebaiigh  88,  92  ;  Holbrook  v.  Holbrook,  1 
V.  Sanks.  2  Watts  (Pa.)  9,  11,  per  Pick.  (Mass.)  248  ;  Maxwell  v.  Col- 
Gibson,  C.  J.  lins,  8  Ind.  38. 

10'  See  U.  S.  v.  Paul,  6  Pet.  141  ;  (a)  Bao.    Max.    10.       [See    also 

Kendall  v.  U.  S.,  12  Id.  524  ;  Shrew  Brewer  v.  Blonsher,  14  Pet.  178  ; 

V.  Jones,  2  McLean,  78;  Re  Free-  Atkins  v.    Disintegrating  Co.,  18 

man,    2    Curt.     491  ;    Kuapp    v.  Wall.  272.1 

IJrooklyn,  97  N.  Y.  520;  Be  Main  (b)  Siradling  v.  Morgan,  Plowd. 

Str.  93  Id.  457 ;   Schlaudecker  v.  204.      [So  that,  if  the  purpose  of 

Marshall,  72  Pa.  St.  200  ;  Darms-  the  act  plainly  be  to  affect  only  a 

taetter  v.  Moloney.  45  Mich.  621  ;  particular    class    of    persons,    the 

State   V.    Davis,    22   La.    An.    77 ;  generality  of  the  language  will  not 

Oleson  V.  R.  R.  Co..  36  Wis.  383  ;  have  tlie'effect  of  including  a  sin- 

and    see    further   as   to   reference  gle    individual    not    belonging  to 

statutes,  post,  ^^  492-493.  that  class :   U.  S.   v.  Sanders,   22 

Wall.  492.] 


IIG 


fcUnJKCT    MATTICU  AND  OBJECT. 


[§8r 


tlu'Y  were  used,  as  iDcliuliiii^  or  not  including  corporations 
(«).  [In  its  legal  significance,  it  is  said,  the  word  "  person"" 
is  a  generic  term,  and  as  such,  prima  facie,  includes  artificial 
as  well  as  natural  persons,""  unless  the  language  indicates 
that  it  is  used  in  a  more  restricted  sense.""  Ilencc,  under 
the  crimes  act  of  1804,  §2,  prescribing  a  penalty  for  the 
destruction  of  a  vessel  insured,  the  phrase  "any  person," 
was  held  to  include  corporations.  '"  So  in  a  statute  re- 
straining any  person  from  doing  certain  acts,"^  as  for  ex- 
ample, the  taking  of  usurious  interest."^  So,  too,  a  corpora- 
tion has  been  held  to  be  a  "  person"  within  the  meaning  of 
an  act  making  liable  in  damages  a  person  inflicting  injuries 
resulting  in  death  ;"*  of  an  act  forbidding  a  municipality  tO' 
agree,  by  ordinance,  contract  or  otherwise,  with  any  "  person 
or  persons"  for  the  extension  of  gas  works  for  supplying 
the  cor2:»oration  or  its  inhabitants  with  gas  ;"^  of  the  revenue 
laws  of  Kentucky  ;""  of  the  Wisconsin  Mill  Dam  act ;"'  of 
an  act  providing  that  persons  may  be  sued  for  a  trespass  in 
the  county  where  it  is  committed  ;"*  of  sec.  832  of  Gantt's 
Ark.  Dig.  providing,  that,  if  any  person  shall  convey  any 
real  estate  .  .  and  shall  not  at  the  time  .  .  have  the  legal 
estate  in  such  lands,  but  shall  afterwards  acquire  the  same,, 
the  legal  or  equitable  estate  afterwards  acquired  shall  imme- 


(«)  R.  V.  Gardner,  Cowp.  79  ;  11. 
V.  York,  6  A.  &  E.  419  ;  K.  v. 
Beverley  Gas  Co.,  Td.  M'),  Bac. 
8lat.  Uses,  43,  57;  Plianiiaceutioal 
Soc.  V.  London  Supply  Assoc.,  5 
A  PI).  857,  49  L.  J.  730  :  St.  Leo- 
nard's V.  Franklin,  3  C.  P.  D.  377; 
Union  Steamsh.  Co.  v.  Melbourne 
Harbor  Trust,  L.  R.  9  App.  Cas. 
3C5. 

109  Dou2;lass  v.  Pacific  Mail, 
etc.,  Co.,  4  Cal.  304.  See  to  tiie 
same  eHect :  Cary  v.  Marston,  5G 
Barb.  (N.  Y.)  27;  U.  S.  Tel.  Co.  v. 
West.  Union  Tel.  Co.,  Id.  40  ;  and 
see  In  re  Fox.  52  N.  Y.  530;  Miller 
V.  Com'th,  27  Gnitt.  (Va.)  110; 
Northw.  Fertil.  Co.  v.  Hyde  Park, 
3Biss.  480;  Bisb.,Wr.  L.  §212. 
Comp.  Dojine  v.  Clinton,  2  Utab, 
417.  But  see  contra:  State  v. 
Fertilizer  Co.,  24  Ohio  St.  611,  in- 
fra, n.  125. 

"» Planter's,     etc.,    B'k   v.    An- 


drews,  8  Port.  (Ala.)  404;  lie 
Oregon  Bulletin,  etc.,  Co.,  13 
Bankr.  Reg.  199. 

'"  U.  S.  V.  Amedy,  11  Wbeat. 
392  ;  and  see  Beaston  v.  Bank,  12 
Pet.  102. 

"^  People  V.  Utica  Ins.  Co.,  15 
Jobns.  (N.  Y.)  358.  381,  382. 

"3  Cominerc.  B'k  v.  Nolan,  8 
Miss.  508.  See  also  Lumberman's 
B'k.  V.  Bearcc,  41  Me.  505;  Cliafin 
V.  B'k,  7  Ileisk.  (Tenn.)  499  ; 
Stribbling  v.  B'k,  5  Rand.  (Va.} 
132. 

"*  Chase  V.  Steamb.  Co.,  10  R. 
I.  79. 

"^  Cine.  Gas,  etc.,  Co.  v.  Avon- 
dale,  43  Ohio  St.  257. 

i'«  Louisville,  etc.,  R.  R.  Co.  v. 
Com'th,  1  Bush.  (Ky.)  250. 

i"  Fisher  v.  Iloricon,  etc.,  Co.^ 
10  Wis.  351. 

"8  Bartee  v.  R.  R.  Co.,  86  Tex. 
648. 


§  88]  SUBJECT    MATTKK  AND  OBJECT.  HT 

diately  pass  to  the  grantee  ;'"  and  within  the  protection  of 
the  Sale  of  Food  and  Drugs  Act  of  1875.'-°  Siinihxrly,  a 
limited  partnership  was  held  liable  to  the  penalties  imposed 
by  statute  upon  "any  person  or  corporation,"  for  the  tres- 
pass of  its  manager  or  authorized  agent.'" 

§  88.  [On  the  other  hand,  it  has  been  held,  that,  though 
a  corporation,  being  a  person  in  contemplation  of  law,  may 
be  included  by  the  use,  in  a  statute,  of  the  terra  "  person," 
yet,  as,  in  the  construction  of  statutes,  the  terms  and  lan- 
guage thereof  are  to  be  taken  and  understood  according  to 
their  usual  and  ordinary  signification,  as  generally  under- 
stood among  mankind,  nnless  the  context  and  other  parts  of 
the  statute  disclose  a  different  intention  ;  and  as  the  term 
"  person  "  is  generally  and  popularly  understood  to  denote  a 
natural  person,  the  absence  of  any  particular  indication  that 
artificial  persons  are  to  be  included  in  the  phrase  would  ex- 
clude that  significance  in  a  revenue  statute  imposing  tax- 
ation upon  all  personal  property  owned  by  any  person  what- 
ever.'" And  in  a  later  case  it  was  said  :  "  that  the  word 
does  not  usually  include  corporations  when  used  in  statutes 
or  common  parlance,  although  in  its  legal  import  it  embraces 
them,  is  wise  and  of  good  authority.'""  But  in  tliat  very 
case,  it  was  held  that  corporations  were  embraced  by  the 
term  "  person,"  in  the  revenue  act  under  construction,  the 
iprovision  that  "  every  person,  every  firm  and  partnership, 
and  the  president,  secretary,  cashier  or  treasurer  of  every 
company  or  corporate  body  "  were  to  deliver  a  statement  of 
"  all  money  due  by  solvent  debtors  to  such  person,  partner- 
ship firm,  company  or  corporate  body,"  etc.,  showing  a  clear 
intention  that   the   word    should  be   so   construed.*''*     The 

•19  Jones  V.  Green,  41  Ark.  363.  v.   Laski,    9  Heisk.   (Tcnn.)   511  ; 

120  Enniskilli'ii  Giianlians  v.  Hil-  Newcastle   Corp'n,    1:3    CI.    &  F. 

liiud,    14    Ir.    L.    K.    214.       See  40>. 

also  Uisli.,Wr.  Laws,  §213,  citing,  '-i  Qrii-    Ridge    Coal   Co.,  Lim. 

in  addition  to  some  of  tlie  above  v.  Ro<,'evs,  108  Pa.  St.  147. 
cases:  Society,  etc.  V.  New  Havea,  '-*  School   Directors   v.    Carlisle 

8  Wlieat.  464  ;  Olcott  v.  Tioga  R.  B'k.  8  Watts  (Pa.)  289. 
R  Co.,  20  N.   Y.   210:  People  v.  »-»  Saving  Fund  v.  Yard,  9  Pa. 

I^Iav,     27     Barb.    (N.    Y.)    238  ;  St.  359. 

Gennania  v.  State.  7  Md.  1  ;   Nor-  •-■*  And   see  Union  Canal  Co.  v. 

ris  V.  State.  25  Ohio  St.  217  ;  State  Dauphin  Co.,  3  Brews.  (Pa.)  124. 
^v.  R.  R.  Co..  23  Ind.  362;  Memi)his 


118  SUBJECT    MATTKU  AND  OBJECT.  [§  89' 

absence  of  such  ;i  ro(|iiirenioiit.,  together  with  the  fuihire  of 
an}'  reference  to  corporations,  in  the  first  section  of  a  hiter 
revenue  act,  determined  tlie  same  court  to  hold  cor])orations 
not  included  under  the  term  •' jjersuns"  as  used  in  that 
section.'"  And  obviously,  a  corporation  is  not  a  "  person" 
within  the  meaning  of  an  act  permitting  the  formation  of 
corporations  by  any  number  of  "  persons  "  not  less  than  six."' 

§  89.  [It  is  evident  that  the  word  "  person  "  may  or  may 
not  include  corporations,  according  to  the  intention  of  the 
Legislature  in  the  use  of  the  term,  and  that,  in  ascertaining 
that  intention,  in  the  absence  of  determining  features  in  the 
context,  in  other  parts  of  the  statute,  in  acts  in  pari  materia, 
and  the  like,  the  subject  matter  and  object  of  the  enactment 
are  recognized  as  furnishing  the  only  guide.  If  any  gen- 
eral rule  can  be  drawn  from  the  decisions,  it  would  seem  to 
be  this,  that,  where  the  act  imposes  a  duty  towards,  or  for 
the  ])rotection  of,  the  public  or  individuals,  grants  a  right 
properly  common  to  all,  and  from  participation  in  which  the 
limited  character  of  corporate  franchises  and  the  absence 
of  any  natural  rights  in  corporations  do  not,  by  any  policy 
of  the  law,  debar  them,  the  term  "  persons"  will,  in  general 
include  them,  whether  the  act  be  a  penal  or  a  remedial  one. 
But  in  the  cases  of  enactments  having  a  different  object  in 
view,  and  especially  of  the  class  pre-eminently  requiring  a 
construction  in  accordance  with  conimon  and  popular  usages 
of  the  language,'"  it  would  seem  that  corporations  would 
not,  in  general,  be  included.  And  it  would  seem,  further, 
that,  wherever  corporations  are  embraced  under  the  term 
persons,  the  corporations  intended  would  be,  at  least,  pri- 
uu^i'ily,  only  those  created  under  the  laws  of  the  state  upon 


1"  Fox's  App.,  112  Pa.  St.  337,  note  8),  that,  in  some  of  the  other 

351.     The  decision  in  Stale  V.  Fer-  slates  it  would  probably  beheld 

tilixcr   Co.,   24   Ohio    St.    611,    to  the  other  way,  seems  to  be  based 

the  effect  that  a  corporation   was  entirely  upon  the  legislative  sense 

not  a  person  within  the  act  of  15  and  usage   of  the  word  person  ia 

April,  Ib.jT,  to  prevent  nuisances,  criminal  statutes  in  Ohio. 

— the  word  ])ersons,  in  its  primary  '-^  Factors',    etc.,  Ins.    Co.    v. 

sense    meaning     natural     persons  New   Harbor  Protection    Co.,  37 

only — of  which  it  is  said   by  ]Mr.  La.  An.  233. 

Bishop   (Bish.,    Wr.  Laws,  §  212,  '"  See  ante,  §§  80,  83. 


§90] 


SUBJECT    MATTliK  AND  OBJECT. 


119 


wliose  statute  book  the  act   appears,'"  and  generallj,  only 
private,  not  public  or  municipal  ones.'" 

§90.  [Again,  the  word  ''persons''"'  may  be  variously 
understood]  as  meaning  persons  born  in  the  Queen's  allegi- 
ance, or  as  including  also  all  foreigners  actually  within  the 
British  dominions  (a),  or  (the  meaning  in  prize  and  com- 
mercial law,)  only  persons  domiciled  in  those  dominions  (h). 
In  an  Act  which  provided  for  the  recovery  of  wages  by 
''persons  belonging  to  a  ship"  this  expression  would  ob- 
viously be  confined  to  persons  employed  in  its  service  on 
board  ;  while  in  one  which  related  to  the  salvage  of  "per- 
sons belonging  to  the  ship,"  it  would  as  obviously  include 
passengers  as  well  as  crew  (c).  [And  the  word  "  crew,"  in 
a  statute  prohibiting  any  master  or  other  otHcer  of  a  ves- 
sel maliciously  to  imprison,  etc.,  any  of  the  crew,  was  held 
to  include,  not  only  the  common  seamen,  but  the  subordi- 
nate officers,  e.  g.,  the  first  mate  of  the  ship."']  The  loth 
Eliz.  c.  5,  whicii  made  void,  as  against  creditors,  all  volun- 
tary alienation  of  "goods,"  was  held  to  apply  only  to  such 
goods  as  were  liable  to  be  taken  in  execution,  as  the  object 
of  the  Act  was  to  prevent  such  property  from  being  with- 


es See  Wliite  v.  Howard,  46  N. 
Y.  164,  165  ;  U.  S.  v.  Fox,  94  U.S. 
315. 

1^9  See  Memphis  V.  Lnski,  9  Iloisk. 
(Tenn.)  511.  As  to  the  interpreta- 
tion of  tlie  word  "  persons  "  so  as 
toembrace  tliestateor government, 
see  post,  ^§  1(!1-16S.  And  see  Ilixon 
V.  George,  18  Kan.  253,  that  a 
statute  making  allegations  of  cor- 
porate existence  f;on«slnsive  unless 
denied,  etc.,  includes  municipal 
and  quasi-municipal,  as  well  as 
private,  corporations. 

'^o  An  act  making  it  criminal  for 
any  person  to  i)ursue  Ids  ordinary 
calling  on  Sunday, applies  to  a  judge 
holding  court:  Bass  v.  Irvin,  49  Ga. 
4:36. 

(a)  Couvteen's  Case,  Mob.  270.  1 
Hale,  P.  C.  542;  Nga  Hoong  v.  li.. 
7  Cox,  489  ;  Low  v.  Koutledge,  35 
L.  J.  Cli.  117,  1  L.  K.  Ch.  42;  jyer 
Turner,  L.  J. 

{b)  Wilson  v.  I\rarryat.  8  T.R.31; 
The  Indian  Chief,  3  l?ob.  12. 

(c)  The  Fusilier,  3  Moo.  N.S.  51, 


34  L.  J.  P.  M.  &  A.  25  ;  see  The 
Cybele,  3  P;  D.  8;  U.  S.  v.  Winn, 
3  Sumner,  209. 

1^1  U.  S.  v.  Winn,  supra.  The 
ma^cr  of  a  vessel,  enrolled  as  a 
coasting  vessel  and  employed  on 
the  Hudson  river,  was  held  not  to 
be  a  '•mariner"  exempt  from  militia 
dut}^  under  the  act  of  Congress  of 
1792  :  Brush  v.  Bogardus,  8  Johns. 
(N.  Y.)  157.  Nor  was  a  master  of 
a  vessel  held  entilled  to  double  pay 
for  delay  in  payment  of  wages  re- 
coverable l)v  "seamen"  under  17 
and  IK  Vict.'c.  104  :  The  Arina,  L. 
K.  12  P.  1).  118.  Xor  was  a  pay- 
master of  volunteers  appointed  by 
the  President  of  the  United  States 
under  an  act  of  congress  held  exempt 
from  civil  process  under  the  laws 
of  Pennsylvania  exempting  from 
execution  or  other  process  "  any 
ofliccr,  non-commissioned  officer, 
or  private  of  the  militia  "  and  "  an}' 
person  mustered  into  the  service  of 
the  U.  S.:"  3Iecli.  Sav.  B'k  v. 
Sallade,  1  Wooilw.  (Pa.)  23. 


120 


SUBJECT    MA'rrER  AND  OBJECT. 


[§90 


drawn  from  the  reach  of  creditors  ;  conseqnentlj,  the  word 
"goods"  was  held  not  to  include  choses  in  action,  as  long  as 
these  were  not  subject  to  execution  {a).  But  the  same  word 
was  held  to  include  them  in  the  I'cputed  ownership  clauses 
of  former  bankrupt  and  insolvent  Acts  {h) ;  as  thej  were 
deemed  to  fall  within  the  specitic  object  of  the  iegishiture, 
which  was  to  protect  creditors  against  being  deceived  by  an 
apparent  ownership  of  property.  So  in  bankruptcy  A.cts, 
the  word  '"  creditor"  is  found  to  be  limited,  usually  to  per- 
sons who  are  creditors  at  the  time  of  the  bankruptc}'  and 
entitled  to  prove  under  it  (c).  [On  the  other  hand,  the 
phrase  "any  creditors  who  shall  claim  any  debt  or  demand 
under  the  bankruj)tcy  "  was  not  restricted  to  sucli  creditors 
only  as  came  in  and  proved  their  debts,  but  embraced  all 
•creditors  with  subsisting  claim's  upon  the  bankrupt's  estate, 
"whether  they  had  a  security  or  mortgage  therefor  or  not."'' 
But  where  the  intention  of  certain  provisions  was  to  em- 
brace only  the  defalcations  of  public  officers,  administrators, 
and  the  like,  it  was  held  that  the  generality  of  the  terms 
used  in  the  statute,  making  them  apparently  applicable  to 
all  persons  acting  in  a  "fiduciary"  capacity  and  to  all 
moneys  constituting  a  "  trust  fund,"  would  nevertheless  not 
include  the  case  of  a  factor  who  had  collected  and  retained 
the  amount  of  a  note  entrusted  to  him  by  his  principal  for 
■collection  ;"'  nor  that  of  a  banker."*] 


(a)  Dundas  v.  Diitens.  1  Ves.  J. 
19G;  Rider  v.  Kidder,  10  Ves.  3G0  ; 
iS"orcutt  V.  Dodd,  Cr.  &  Ph.  100  ; 
Sims  V.  Thomas,  13  A.  &  E.  5;]0. 

(/^)l{y:ill  V.  Howies,  1  Ves.  ;JG7; 
Exp.  Baldwin,  DeU.  &  Jo.  230,  27 
L.  J.  Bank.  17;  "Insolvency," 
comp.  Ee  Muggiidge.  .lohns.  G2o, 
29  L.  J.  Ch.  288;  and  II.  v.  Sadd- 
lers' Co.,  10 11.  L.  44,  32  L.  J.  Q.  B. 
337 

(c)  Grace  v.  Bishop,  11  Ex.  424, 
25  L.  J.  58;  i?c  Poland,  L.  11..  1  Ch. 
856.  [See  Fowler  v.  Kendall.  44 
Me.  448.  In  the  construction  of 
an  act  concerning;  settlements,  it 
was  said,  in  Guardians  of  Croydon 
V.  Guardians  of  Keiuate,  L.  li.  19 
Q.  B.  D.  385,  ?j8S,  per  Lovd  Eslicr, 
31.  K.,  tliai  "the  moment  of  time 
whi^h  governs  the  question  of  set- 
tlement, is  the  time  when  the  proper 


persons  have  tomakeupthcir  minds 
as  to  the  removal,  in  other  Avoids 
the  moment  of  adjudication,"  cit, 
11.  V.  Guardians,  of  Bridgnorth. 
11  Q.  B.  D.  314.  Ilenee,  a  ';  wife," 
under  such  an  enactment,  is  "  not 
a  person  who  has  been,  or  will  be, 
a  wile,  but  who  is  so  at  that  mo- 
ment." and  "a  widow  who  has 
been  a  wife,  but  is  not  so  at  the 
moment  of  adjudication  cannot  be 
called  a  wife  :"  per  Lord  Esher,  ubi 
supra.] 

'"^  Exp.  Christy,  3  How.  292. 

'^2  Commercial  B'k  v.  Buckner,  2 
La.  An.  1023.  And  see  to  similar 
effect  :  Chapman  v.  Forsyth,  2 
How.  202 ;  Hayman  v.  Pond,  7 
Mete.  (Mass.)  328  ;  Austill  v.  Craw- 
ford, 7  Ala.  335. 

1S4  Maxwell  v.  Evans,  90  Ind. 
596. 


§g  01,  92]  SUBJECT   MA'ITER    AND    OBJECT.  121 

§  91.  'Inhabitant,"  "Resident,"  etc.— Tlic  COllipleX  tcriMS 
"  iiilnibitant,"  [''  resident,"]  nuiy  be  cited  :is  having  frequeiit- 
ly  fui'uislied  illustrations  of  this  adaptati(jn  of  the  meaning 
to  what  appears  to  suit  most  exactly  the  object  of  the  Act. 
Ill  the  abstract,  the  word  would  include  every  human  being 
dwelling  in  the  place  spoken  of.  A  right  of  way  over  a 
field  to  the  ])arish  church  granted  to  the  '•  iiilial)itants  "  of 
a  parish  would  include  every  person  in  the  parish  [a).  But 
where  the  object  of  an  Act  was  to  impose  a  pecuniary  burden 
in  respect  of  property  in  the  locality,  the  expression  was 
construed  as  comprising  all  holders  of  lands  or  houses  in  the 
locality,  whether  resident  or  not,  and  corporate  bodies  as 
well  as  individuals,  but  as  excluding  actual  dwellers  who  had 
no  rateable  property  in  the  place,  such  as  servants  ;  it  being 
"  infinite  and  impossible  "  to  tax  every  inhabitant  being  no 
householder,  and  who  could  not  be  distrained  upon  for  non- 
payment, and  therefore  highly  improbable  that  the  Legisla- 
ture intended  to  tax  them  (b). 

§  92.  On  the  other  hand,  where  the  object  is  to  impose 
the  performance  of  a  personal  service  within  the  locality,  the 
word  '"inhabitant"  would  probably  be  construed  as  not 
comprising  either  corporate  bodies  or  non-resident  proprie- 
tors. Thus,  it  was  held  that  a  person  who  occupied  premises 
in  one  ])arish  and  carried  on  his  business  in  person  there,  but 
resided  in  his  dwelling-house  in  another,  was  not  an  ''inhabi- 
tant" of  the  former  parish  so  as  to  be  bound  to  serve  as  its 
constable  {e).  So,  an  Act  which  authorizetl  the  imposition 
of  a  rate  on  all  who  "inhabited  or  occupied"  any  land  or 
house,  and  the  appointment  of  a  number  of  "  inhabitants" 
to  collect  the  rates,  was  held  to  throw  the  latter  duty  only 
on  actual  dwellers  in  the  locality  {d).  But  here  the  word 
"occupied"  would  suggest  a  meaning  for  "inhabitants" 
distinct  from  "  occupiers."  [So,  where  a  personal  right  is 
given  to  the  inhabitants  of  a  locality,  the  meaning  of  the 
word  may  be  still  more  narrowed.'"     Thus,  under  an   act 

{a)  R.  V.  Mashiter,  G  A.&  E.  165,  East,  330  ;   Williams  v.  .Tones,  Id. 

per  Littledale.  .T.  o87. 

{h)  2  Inst.  703.  R.  v.  North   Cur-  {d)  Donne  v.  Martyr,  S   B.  &  C. 

ry,  4  B.  &  C.  058,  per  Bayley  J.  G3. 

{c)  R.  V.  Adlard,  4  li.  &  C.  772  ;  »==  See  post,  §  97. 
and    see     li.     v.    Nicholson,     12 


122  SUBJECT    MATTER    AND    OBJECT.  [§93 

autliorizing  towns  and  cities  to  suLscribo  for  railway  stock, 
after  submission  of  the  question  to,  and  approval  by,  the 
"  inhabitants,"  the  latter  means  legal  voters.""  And  where 
an  act  required  the  consent  of  "  residents"  to  the  bounding 
of  a  town,  it  was  held  that  the  phrase  did  not  include  a  canal 
corporation  whose  canal  extended  through  the  town.*"  On 
the  other  hand,  the  torni  "  lionseholder "  was  deemed  to 
include  an  unmarried  man  w^lio  kept  house  and  employed 
domestic  servants,  within  the  meaning  of  a  law  calling  for 
petition  by  householders  for  the  establishment  of  a  road."*] 

§  93.  Again,  another  meaning  would  be  given  to  the  [term 
"  iniiabitant,"  or  "  resident"]  where  the  object  was  to  deter- 
mine the  settlement  of  a  pauper,  or  the  qualification  of  an 
elector.  In  those  cases,  a  person  is  an  inhabitant  or  resident  of 
the  place  in  which  he  usually  sleeps  {a).  What  amounts  to 
inhabitancy  in  this  sense,  it  is  impossible  to  define.  Sleeping 
in  a  place  once  or  twice  does  not  constitute  it;  and,  on  the 
other  hand,  such  residence  generally  in  a  place,  in  this  sense, 
is  quite  compatible  with  much  absence  from  it  (J).  [Simi- 
larly, under  an  act  fixing  a  limitation  of  two  years,  witliin 
which  alone  certain  misdemeanors  mentioned  in  the  act  may 
be  prosecuted,  but  providing,  that,  where  any  offender 
"  shall  not  have  been  an  inhabitant  of  the  state,  or  usual 
resident  therein  during  the  respective  times  for  which  he 
shall  be  subject  and  liable  to  prosecution,"  he  shall  be  so 
subject  within  a  similar  period  of  time  during  which  he  shall 
be  an  inhabitant  of,  or  usually  a  resident  within,  the  state, 
one,  who,  after  having  committed  an  offence  affected  by  this 
statute,  entered  the  military  service  of  the  United  States, 
served  outside  of  the  state,  returninji  occasionally  on  furlough, 
and  finally  after  his  discharge,  returned  to   his  family  and 

130  Walnut  V.  Wade,  103  U.  S.  Riley  v.  Rend,  4  Ex.  D.  100. 
683.  {'>)  Wesconib's  Case,  L.R.,4  Q.B. 

1^1  People    V.    Shooumaker,    63  110;  Taylor  v.  St.  Mary  Abbott,  L. 

Barb.  (N.  Y.)  44.  R.    5    C.    P.    309;    Tioud    v.    St. 

'"8  Kamer  v.  Clatsop  Co.,  G  Oreg.  George's,  Id.  314;  and   see  White- 

238  liorne  v.  Tlioinas,    7  M.  &  Gr.  1 ; 

{a)  St.  Mary  v.  Radcliffe,  1  Stra.  Ford   v.  Pye.   L.  R.  9   C.    P.   269; 

GO,  per  Parker,  C.  J.;  R.  v.  Charles,  Ford  v.  Hart.  Id.  273;   McDougal 

Burr.  Sel.  C.  706  ;  R.  v.  Stratford,  v  Patenson,  11  C.  B.  755,  2  L.  M. 
11  East,  170;  R.  v.  Mildenball,  3  B.  '   «&  P.  681;  Dunston  v.  Patersou,  5 

&  A.  374  ;   Bcal  v.  Ford,  3  C.P.D.  C.  B.  N.  S.  267. 
73:   Ford   v.  Drew,  5  C.  P.  D.  59; 


§  04]  SUBJECT   MATTER    AND    OBJECT.  123 

residence  in  the  state,  was  held  not  to  have  lost  his  character 
as  "  an  inhabitant  of  the  state  or  usual  resident  therein,"  and 
consequently  a  prosecution  after  his  return  and  more  tiian 
two  years  subsequent  to  the  commission  of  the  offence  was 
barred  by  the  statute.""]  But  if  an  x\ct  requires  residence  for 
a  certain  time  at  least,  as  a  qualification,  it  would  be  under- 
stood to  make  actual  bodily  presence  in  the  place  for  that 
time  indispensible ;  as  was  held  in  the  construction  of  the 
Act  which  constituted  the  congregation  of  the  University  of 
Oxford,  of  residents;  and  required  that  those  residents 
should  have  resided  at  least  twenty  weeks  in  a  year  {a). 

§  94.  The  same  expression  has  received  another  meaning- 
where  the  object  of  the  Act  was  to  preserve  information  as 
to  the  place  where  a  person  was  to  be  found  at  times  when 
it  was  most  likely  that  he  should  be  sought ;  as  in  the  enact- 
ment which  requires  an  attorney  to  indorse  his  "  place  of 
abode  "  on  the  summons  which  he  issues  ;  or  a  witnesss  to  a 
bill  of  sale,  to  add  to  his  signature  a  description  of  his  occu- 
pation and  "  residence."  In  these  cases  it  has  been  held, 
considering  the  object  which  the  Legislature  had  in  view, 
that  the  place  of  businesss  was  the  abode  or  residence  in- 
tended [b).  But  in  general  the  place  of  business  would  not 
be  regarded  as  the  place  of  abode  (c). 

Under  the  provisions  of  the  County  Courts  Act,  which 
gives  the  Superior  Courts  concurrent  jurisdiction  when  the 
parties  dwell  more  than  twenty  miles  apart,  the  principal 
office  of  a  railway  company  is  its  dwelling  {d)\   but  not  its 

"9  Graham     v.    Com'th,    51   Pa.  &  R.  5(51  ;   Blackwell  v.  Ensjland, 

St.  255.  27  L.  J.  Q.  B.  124.  8  E.  &  IJ.  541 ; 

{a)  R.  V.  Oxford  (V.  C),  L.  R.  7  Altcnborongh  v.  Thompson,  27  L, 

Q.  B   471.   [Ordiuaiily  the  term  in-  J.  Ex.  23,  2^^  II.  &  M.  559  ;   Ablett 

habitant,  resident,  imports  a  perma-  v.  Ba>h,im.  25  L.J.  Q.  B.  239,  5  E. 

ncnt  abode,  and  does  not  apply  to  &  B.  1019;  Hewer  v.  Cox,  30  L.  J. 

a  nu're  teinporaiv  sojimrning  :  lb. ;  Q.  B.  73;  L;uchin  v.  X.  W    Bank, 

Reeder  v.  llolcomb,  105  Mass.  93  ;  L.R.  10  Ex.  G4,  jKr  Blackburn.  J. 

Way  V.  AVay,  (54  111.  407.     And  see  ^ini  Thorpe  v.  Browne,  L.  R.  3  11. 

Frv's  Election  Case,  71  Pa.  St.  302,  L.  220. 

as  U)  construction  of  constitutional         (e)  See  R.  v.  Hammond,  17  Q.B. 

provision  requiring  residence  for  a  772;  21  L.  J.  Q.  B.  153. 
certain  length  of  time  in  the  state         (</)  Adams  v.  Gt.  Western  R.Co. 

and   eleciion   district   as   a   prere-  G  II.  &   N.  404  ;   Taylor  v.  Crow- 

quisitc  to  the   right  of   votinir,  to  lanil   Gas   Co.,  11  Ex.  1;  Minor  v. 

the  exclusion  of  students  at  a^col-  N.  W.  R.  Co.,  1  C.B.  N.S.  325,  2G 

lege.     See  also  post,  5^  519.]  L.  J.  C.  P.  39. 

\b)  Roberts  v.  Williams,  2  C.  M. 


124  SUBJECT   MATTKU    AND    OBJECT.  [§  95 

-offices  or  stations  {a).  But  the  niamifactory  or  shop,  where 
the  business  is  snbstiintiully  carried  on,  and  not  its  registered 
office,  is  the  dwelling,  within  the  meaning  of  the  same  pro- 
vision of  a  manufacturing  company  {h).  For  fiscal  purposes, 
a  corporation  is  regarded  as  residing  where  the  governing 
body  carries  on  the  su])rcme  management,  thongli  the  scene 
of  its  operations  and  sources  of  profit,  and  even  the  majority 
of  the  shareholders,  are  out  of  the  country,  and  though  it  has 
a  foreign  domicil  and  is  registered  abroad    (^').      A   foreign 

■corporation  which  had  any  establishment  in  this  country 
would  for  the  same  purpose  be  considered  as  resident  here, 
as  regards  the  question  of  jurisdiction  {d). 

[The  State,  as  a  political  body,  cannot  be  said  to  reside 
anywhere,  and  therefore  is  not  included  under  an  act  allow- 
ing deductions  from  the  valuation  of  taxable  property  of 
debts  due, "  creditors  residing  within  this  state  ;"  so  that  no 
deduction  could  be  made  from  the  valuation  of  an  indi- 
vidual's real  estate  by  reason  of  a  mortgage  ui)on  it,  given 
to  trustees  for  the  support  of  public  schools.'"] 

§  95.  "  Occupier,"  etc.— In  the  same  way,  the  word  "  occu- 
pier "  has  received  ditferent  meanings,  varying  with  the 
object  of  the  enactment.  Ordinarily,  the  tenant  of  premises 
is  the  "  occupier"  of  them,  although  he  may  be  personally 
absent  from  them  {e\  while  a  servant  or  an  officer  who  is  in 
actual  occupation  of  premises,  virtute  officii,  would  not  be 
an  "occupier"  (/).  But  in  the  Bill  of  Sales  Act  of  1854, 
which  provides  that  personal  chattels  shall  be  deemed  in  the 
possession  of  the  grantor  of  a  bill  of  sale  so  long  as  they  ai-e 

{a)  Shiels  v.  G.  N.  R.  Co.,  30  L.  Congr.  3  June,  1864)  is  said  to  be 

.T.Q.B.  331;  Brown  v.  London  and  an  indeHnite  term,  to  be  construed 

K.  \V.  R.  Co.,  4  B.  &  S.  320;  32  L  wilb  lefeience  to  tlie  connection  in 

j/  318.  wliicb  it  is  used,  Ibe  subject  uialter 

(6)  Keynsbam  v.  Baker,  2  II.  &  and  the  object  in  view  :  Clapp  v. 

C.  729,    33  L.  .1.  Ex.  41;   see  also  Burliniiton,  42  Vl.  579.] 

Aberystwith  Pier  Co.  v.  Cooper,  '^"  Slate  v.  Trenton,  40  N.  J.  L. 

35  L.  J.  Q.  B.  44.  89. 

(c)  New  by   v.  Colt'a  Arms   Co.,  (e)  R.  v.  Poynder,  1  B.  &  C.  178. 

L.  R.  7  Q.B.  293  ;  Carron  Iron  Co.  See  Morrow  v.  Brady,  12  R.  J.  130. 

V.  Maclaren,  5  H.L.  459.  See  Atly.-  (/)  Clarke  v.  Bury  St.  Edmunds, 

Gen.  V.   Alexander,  L.  R.  10  Ex.  1  C.  B.  N.  S.  23.  20  L.  J.  12  ;  Bent 

20.  V.  Roberts,  3  Ex.  D.  06,  47  L.  J. 

(rf)  Cescna  Sulphur  Co.  v.  Niehol-  112  ;  R.  v.  Spurrell,  L.  R.  1  Q.  B. 

son,  1  Ex.  D.  428.     [So   the  place  72,  85  L.  J.  74. 
where  a  bank  is  located  (g  41,  Act 


§  95]  SUBJECT    MArrER    AND    OBJECT.  125- 

on  tliG  premises  "  occiipiccr' by  liiiu,  actual  persoiuil  occu- 
pation, and  not  merely  tenancy  is  intended  ;  and  therefore 
the  owner  of  chattels  in  rooms  which  he  does  not  personally 
occupy  is  not  in  the  apparent  possession  of  them,  within 
that  Act  («).  [So,  nnder  an  act  providing  for  taxation  of 
residents,  etc.,  one  who  has  piled  sawed  lumber  upon  a 
wharf,  to  season,  and  pays  wharfage  therefore  is  not  an  occu- 
pier."' Nor  under  a  homestead  exemption  act  can  that  word 
apply  to  a  public  street,  or  alley,  the  fee  of  which  is  in 
debtor.""  But,  nnder  an  act  giving  a  district  court  of  the 
United  States  jurisdiction  over  offenses  committed  in  a  part 
of  the  Indian  Territory  "  not  set  apart  and  occupied  ''  by 
certain  Indian  tribes  it  Avas  held  that  actual  occupancy  of 
the  land  by  the  tribes  was  not  necessary  to  exclude  juris- 
diction, the  word  "  occupy"  being  construed  to  mean  sub- 
ject to  the  will  or  control  of  the  tribes,"'  Under  a 
statute  exempting  from  taxati(jn  property  occupied  by 
a  charitable  corporation,  it  was  held  that  a  case  in  which  the 
property  in  question  had  been  lately  acquired  by  such  a  cor- 
poration, and  the  purchase  had  been  promptly  followed  by 
diligent  present  preparations  to  build  and  occupy  for  the 
purposes  thereof,  was  included."''  But  one  who  let  a  shed 
contiguous  to  a  passage-way  between  it  and  his  store, 
and  received  rent  for  the  same,  knowing  it  to  be  used  for 
o-aniing,  could  not  be  punished  as  for  "  any  house,  building, 
yard,  garden  or  other  appendages  thereof  by  him  actually 
OGCvpied  for  gaming.'""] 

(«)  17  &  18  Vict.  c.  36  ;  Robinson  ton,     113    ^Mass.     518.      Compare 

■V.   Brisgs,  L.    R.  6  Ex.  1.     As  to  IVInllcn  v.  Erie  Co..  85  Pa.  St.  288. 

the  word  "  traveller,"  sec  Taylor  v.  where  a  contrary  construction  was 

Humphreys.  17  C.  B.  3^9,  10  C.  B.  put  upon  a  statute  exempting  from 

N.   S.  429  ;  Fit-her  v.  Howard,  34  taxation    "all  churches,   ...    or 

.  L.   J.   M.  C.  42  ;  Atkinson  v.   Sel-  other  regular  places  of  stated  wor- 

lers,  5  C.  B.  N.  S.  443  ;   Saunders  ship,"   construed   together  with  a 

V.  S.  E.  R.  Co.,  5  Q.  B.  D.  456.  const itutional   prohibition  against 

"  Lodger,"  and  "  occupier,"  Brad-  exemptions  except  as  to    "■actual 

ley  V.   Baylis,   8   Q.   B.    D.    195 ;  places  of  religious  worship,"  etc. 

Morton  v.  Palmer,  Id.  7.  So,  a  provision  or  exception  relat- 

"'  Stockwell  V.  Brewer,  59  Me.  ing  to  vessels  '-engaged  in  uaviga- 

287.     Comp.  post.  §  103,  Dawson  tiou  "  of  a  particular  kind,  cannot 

V.  R.  R.  Co.,  8  Ex.  8.  embrace  a  vessel  lying  at  a  wharf, 

"•-   Weisbrod    v.    Daenicke,    36  in  process  of  construction,  unfin- 

"Wis.  73.  ished  and  hence  as  yet  unfit  for  uavi- 

"3  U.  S.  V.  Rogers,  23  Fed.  Rep.  gallon:  The  Yernmnt.  G  Ben.  115. 
658.  '"  Com'th    v.    Dean,    1    Pick. 

"*<  New  Engl.  Hospital  v.  Bos-  (Mass.)  387. 


126  SUBJECT    M.ViTt;U    AND    OBJECT.  [§  96 

§  9G.  "Owner." — So,  the  word  "owner  "  may  mean  occu- 
pier ;  as  in  the  Towns  Police  Act,  1847,  which  requires  the 
owners  of  the  hinds  and  buildings  where  a  lire  happens  to 
pay  the  expense  of  sending  lire  engines  to  put  it  out  {a). 
[Under  statutes  providing  for  compensation  to  the  "owner" 
of  lands  taken  for  highways,  railways,  or  the  like,  the  term 
applies  to  any  one  having  a  legal  interest  in  the  same,"* 
whether  his  estate  be  an  estate  in  fee  or  less  than  a  fee.'" 
A  tenant  is  an  "owner  or  party  interested"  within  such  an 
act."*  A  trnstee  under  a  deed  of  trust  is  an  "  owner,"  so  as 
to  be  a  necessary  party  to  a  suit  for  the  enforcement  of  a 
lien  for  taxes.""  But  a  tenant  for  life  of  property  fronting 
on  a  street  has  been  held  not  to  be  an  owner  within  a  statute 
authorizing  the  paving,  etc.,  of  a  street  when  a  majority  of 
the  "  owners  "  of  property  on  the  same  shall  apply  for  it."" 
A  qualified  interest  in  real  estate  coupled  with  possesssion 
lias  been  held  to  make  a  man  the  owner  of  real  estate  within 
the  statutory  I'equirement  making  ownership  of  real  estate 
a  qualification  for  service  as  a  juror  ;'^'  and  as  used  in  the 
Minnesota  homestead  law,  the  term  includes  equitable  as  well 
as  legal  ownership.'"  So,  the  pledgee  of  stock,  transferred 
to  him  as  collateral  and  standing  in  his  name,  is  affected 
with  personal  liability  in  respect  of  the  same  as  the  owner 
of  it  within  the  meaning  of  a  statute  making  stockholders 
personally  liable  to  the  creditors  of  the  corporation  in  an 
amount  equal  to  the    stock    owned  by  them.'"     Again,   a 

(a)  10  &  11  Vict.  c.  89  ;  Lewis  v.  of  way,  inchoate  right  of  dower 

Arnold,  L.   R.   10  Q.  B.  245.     See  or  curtesy,  or  charges  or  lions  on 

Exp.  Saffron  Hill,  24.  L.  J.  M.   C.  the  legal  estate,  by  judfrment  or 

56  ;  School  Board  v.  Islington,  1  mortcaire.  See  post,  ^  103  ;  New 
Q.  B.  D.  65;  Aneketill  v.  Baylis,  YorkV Lord,  17Wend,  (>^.  Y.) 885. 
53  L.  J.  Q.  B.  104.  '•*»  Gitcliell  v.   Krcidlor,  84  Mo. 

'"State  V.   R.  R.  Co.,  36  N.   J.  472;  though  the  omission  to  join 

L.   181  ;  and  see  Smith  v.   Ferris,  him  will  not  render  the  tax  sale 

13  N.  Y.  Supr.  Ct.  553.  wholly  void,  but  merely  leave  his 

'^'  Schoff  v.   Improvement  Co.,  interest  unaffected  :  lb 

57  N.  H.  110.  '5»  Baltimore  v.  Boyd,  64  Md.  10. 
"8  Pa.  R.  R.  Co.  V.  Eby,  107  Pa.  '"  Territory  v.  Young,  2  New 

St.    166;  North  Pa.  R.  R.   Co.  v.  Mex.  93. 

Davis,  26  Id.  2o8.     See,  however,  >''■'  Wilder  v.  Ilaughey,  21  Minn. 

State  V.  R.  R.  Co.,  supra,  as  to  the  101  ;  Hartman  v.  Munch,  Id.   107. 

meaning  of  the  ])hrase   "persons  '^^  Aultnian's   App.,  98   Pa.   St. 

interested,"    including    not    only  505  ;  the  term  '■  subscribed,"  used 

persons    having    an    actual    legal  in    the    statute,    being    construed 

estate,  but  also  those  having  some  "owned,"  in   conformity  with  a 

independent   right  not  amounting  constitutional     provision    in    pari 

to  such  an  estate,  as,  e.  g.,  a.  right  materia  :  see  post,  §  181. 


§    96]  SUBJECT    MATTER    AND  OBJECT.  127 

statute  imposing  upon  the  "  owners  "  of  factories  tbe  duty 
of  erecting  fire-escapes,  it  is  lield  that  by  tlie  terra  "  owner" 
is  to  be  understood  he  who  is  in  the  actual  possession  and 
occupancy  of  the  premises,  wlio  phices  the  operatives  in  a 
position  of  danger  and  enjoys  the  benefit  of  their  services; 
and  if  a  tenant  is  in  such  possession  under  a  lease  from  the 
owner  of  the  building,  the  tenant  and  not  the  landlord,  is 
liable  under  the  act,'^^  even  though  the  latter  occupies  another 
portion  of  the  building.'"  So,  the  same  term,  in  a  statute 
making  the  owner  of  a  vehicle  driven  against  another, 
through  failure  to  turn  to  the  right,  liable  in  treble  damages, 
means  the  person  in  mediate  or  immediate  control  of  the 
vehicle,  though  he  be  not  the  actual  owner  ;"°  and  in  an  act 
giving  a  right  of  action  against  the  owner  of  any  locomotive 
or  car  for  an  injury  sustained  by  reason  of  a  defect  in  the 
^ame,  the  word  "  owner  "  is  not  confined  to  the  person  who 
has  the  absolute  right  of  property,  but  means  the  person  who 
is  the  owner  at  the  time  of  the  injury  and  for  the  purpose 
of  operating  the  railroad  on  which  they  are  used,  thus  mak- 
ing a  railroad  company  hiring  cars  from  a  builder  and  run- 
ning them  on  its  road,  liable  to  such  action.'"  But  a  tax 
upon  all  property  "owned"  by  a  railway  company  would 
not  include  Pullman  cars  leased  to  it.'"  And  in  the  aban- 
doned and  captured  property  act  of  Congress  giving  the 
^' owner  "  of  property  sold  by  the  government  the  right  to 
recover  the  proceeds  of  the  sale,  that  term  obviously  cannot 
include  a  factor,  who,  being  entrusted  with  the  property 
for  the  purpose  of  selling  it,  had  made  advances  upon  it, 
•which  would  give  him  a  lien  upon  it,  with  the  right  of 
possession, — a  special  property, — but  could  not  make  him  the 
owner  within  the  purposes  of  the  act."*  Nor  is  a  husband, 
occupying  the  statutory  separate  property  of  the  wife  as  a 
homestead,  its  owner  within  the  meaning  of  the  Ohio  statute 
•exempting  property  from  execution.'*"] 

151  Scliott  V.  Ilaivev,  105  Pa.  St.  v.  Cattarns,  34  L.  .J.  C  P.  46. 
2-23  (cit.  Lee  v.   Ku%,   10  Col.  &         i'«  8t;ite  v.  St.  Louis  Co.  Ct.,  13 

Cine.  W.Lavv  Bull,  440)  ;  Keely  v.  Mo.  App.  53. 
O'Connor,  106  Pa.  St.  321.  •"  U.  S.  v.  Villalonga,  23  Wall. 

'"  Keoly  V.  O'Connor,  supra.  35,43.  See  infra,  note  204,  Stone  v. 

"«  Caniii  V.  Iloirers,  44Conn.291.  New  York,  25  Wend.  (N.  Y.)  177. 

'"  Proctor  V.  K.  R.  Co.,  64  Mo.  "5«  Davis  v.  Dodds,  20  Obio  St. 

112.    See  also,  post,  §  103.  Doggctt  473. 


128  SUBJECT    MATIER  AND  OBJECT.  [§  9T 

§  97.  Additional  Illustrations. — This  restiictioii  of  meaning 
may  be  carried  still  further  to  promote  tlie  real  intention, 
and  not  exceed  the  object  and  scope  of  the  enactment. 
Thus,  an  Act,  which,  reciting  the  inconveniences  arising 
from  churclnvardens  and  overseers  making  clandestine  rates, 
enacted  that  those  officers  should  permit  "  every  inhabitant " 
of  the  parish  to  inspect  the  rates,  under  a  penalty  for 
refusal,  was  held  not  to  apply  to  a  refusal  to  one  of  the 
churchwardens,  who  was  also  an  inhabitant.  As  the  object 
of  the  Act  was  limited  to  the  protection  of  those  inhabit- 
ants only  who  had  previously  no  access  to  the  rates  (which 
the  churchwardens  had),  tlie  meaning  of  the  term  "  inhabi- 
tants" was  limited  to  them  {a). 

In  another  case,  the  majority  of  tiie  Judges  of  the 
Queen's  Bench  went  further  than  the  Chief  Justice  thought 
legitimate,  in  ffivino:  an  unusual  and  even  artificial  meaning 
to  a  word,  for  the  purpose  of  keeping  within  the  apparent 
scope  of  the  Act.  The  treaty  between  Great  Britain  and 
the  United  States  of  1842  and  the  G  &  7  Vict.  c.  76,  passed 
to  give  the  Executive  the  necessary  powers  for  carrying  its 
provisions  into  effect,  having  provided  that  each  State 
should,  on  the  requisition  of  the  other,  deliver  up  to  justice 
all  persons,  who,  being  charged  with  murder,  "  piracy,"  or 
other  crimes  therein  mentioned,  committed  within  the  juris- 
diction of  either  State,  should  seek  an  asylum  or  bo  found 
within  the  territories  of  the  other  ;  it  was  held  that  the 
word  "piracy"  was  confined  to  those  acts  which  are 
declared  piracj'  by  the  municipal  law  of  either  country, 
such  as  slave-trading,  and  did  not  include  those  which  are 
piracy  in  the  ordinary  and  primary  sense  of  the  word,  that 
is,  jure  gentium  :  for  as  the  latter  offence  was  within  the 
jurisdiction  of  all  States,  and  was  triable  by  all,  and  the 
offenders  could  not,  consequentlj',  be  said  to  seek  an  asylum 
in  any  State,  since  none  could  be  a  place  of  safety  for 
them,  that  species  of  the  crime  was  not  witliin  the  mischief 
intended  to  be  remedied  by  the  treaty  or  the  Act.  (b). 

(a)  Wetheied  v.  Calcutt,  5  Scott         (b)  Re  Teinan,  or  Tivnan.  33  L. 

N.  R.  409  ;  see  also  R.  v.  Master-  .1.  M.  C.  201,  5  B.  &  S.  G45.     See 

ton,  0  A.  &  E.  153.     [8ee  also,  aute,  also  Kwok  Ah  Sing  v.  Aty.-Geiil. 

fc,  02;  AValuut  v.  Wade.  103  U.  S.  5  P.  C.  179. 

e83.i 


§  98J  SUBJECT    MATTER    AND  OBJECT.  129 

[Again,  under  an  act  forbidding  the  selling  of  wine,  etc., 
without  a  license,  except  bj'  a  wine  grower  selling  "  on  his 
own  premises,"  it  was  held  that  the  latter  must  be  the 
place  of  production  or  manufacture."" 

§  98,  [As  further  illustrations  of  construction  conforming^ 
with  the  rule  in  question,  the  following  instances  are 
worthy  of  notice.  A  statutory  exemption  of  shtp-ownera. 
from  liability  for  loss  by  fire,  but  excluding  from  the  bene- 
fit of  the  act  the  owners  of  vessels  engaged  in  inland  navi- 
gation, was  held,  nevertheless,  to  extend  to  vessels  navigat- 
ing the  great  lakes,  such  navigation  not  being  inland  within 
the  meaning  of  the  exception.'"  An  act  authorizing  the 
issuing  of  bonds  by  a  county  in  aid  of  the  building  of  a 
railroad  and  other  works  of  internal  improvement,  was  held 
not  to  authorize  the  issuing  of  bonds  for  the  building  of  a 
courthouse,  it  appearing,  from  the  fact  that  another  statute 
liad  authorized  the  borrowing  of  money  for  county  buildings, 
that  this  particular  object  could  not  be  within  the  intention 
of  the  general  language  of  the  later  act.'^^  A  statute  requir- 
ing certain  contracts  to  be  in  writing,  and  the  consideration 
to  be  expressed  therein,  applied  to  executory  contracts  only, 
and  not  to  instruments  which,  of  themselves,  by  words  of 
grant,  assignment,  surrender  or  declaration  of  trust,  are 
effectual  to  pass  the  estate,  title  or  interest.'"  An  act  allow- 
ing the  issuing  of  warrants  of  attachment  in  any  action  aris- 
ing on  contract,  for  the  recovery  of  money  only,  was,  by 
reference  to  other  provisions  upon  that  head,  showing  that 
its  subject  matter  was  only  claims  of  liquidated  and  ascer- 
tainable amounts,  held  inapplicable  to  suits  upon  breach  of 
promise  of  marriage."^  In  an  act,  whose  manifest  object 
was  to  prohibit  sheriffs  and  their  deinities,  in  their  official 
capacity,  from  becoming  purchasers  at  their  own  sales  and 
being  induced  to  act  corruptly  in  relation  to  them  by  their 
interests  as  purchasers,  the  generality  of  the  language  for- 
bidding any  sheriff  or  any  deputy  sheriff   to  purchase  any 

'"  State  V.  Wyl,  55  Mo.  G7.  i«^  Cruger  v.  Cruger,  5  Barb.  (N. 

162  Moore    v.    Transp.     Co.,    24  Y.)  225. 

How.  1.  i«5  Barnes  v.  Buck,  1  Lans.  (N. 

'63  Lewis  V.  Sherman  Co,  Com-  Y.)  268. 
m'rs,  1  McCrary  377. 

9 


130  SUBJECT    MATTKR  AND  OBJECT.  [§  99 

])roporty  at  any  execution  sale,  and  declaring  all  purchases 
so  made  void,  was  so  restricted  as  not  to  interfere  with  the 
right  of  a  sheriff  or  deputy  to  bid  upon  and  purchase  prop- 
erty sold  by  another  on  an  execution  issued  upon  a  judg- 
ment held  by  the  former,  i.  <?.,  with  the  collection  of  his  own 
demands.""  Where  a  municipal  ordinance  forbade  the  sale 
of  fresh  meat,  within  certain  limits,  except  by  licensed  per- 
iions,  but  contained  a  proviso  in  favor  of  farmers  permitting 
them  to  sell  meats,  the  produce  of  their  farms,  it  was  held 
that  one  whose  business  was  that  of  a  butcher  was  not  within 
the  proviso  although  the  meat  sold  by  him  came  from  his 
farm,  if  the  latter  was  only  an  appendage  to  his  business  as 
;i  butcher.*"  Conversely,  one  employed  to  buy  a  piece  of 
real  estate,  that  not  being  his  regular  business,  does  not 
thereby  become  a  real-estate  brokei',  within  the  meaning  of 
a  statute  requiring  such  to  be  licensed."® 

§  99.  [In  the  numerous  statutes  which  give  laborers  cer- 
tain preferences  over  other  creditors,  liens  or  immunities, 
the  word  "  laborers  "  has  been  variously  construed.  Under 
statutes  giving  preferences  to  laborers  for  their  wages 
out  of  the  proceeds  of  execution  against,  and  sale  of,  the 
])roporty  of  their  employer,  it  has  been  held  that  as 
laborers  should  be  regarded  only  those,  who,  with  their  own 
hands,  perform  the  contract  they  make  with  the  employer, 
and  that  one  who  performs  a  contract  to  deliver  lumber,  by 
hiring  teams  and  drivei's,  is  not  a  laborer  within  the  mean- 
ing of  the  act."'  Moreover,  as  the  object  of  these  acts  is  to 
secure  to  the  manval  laborer  the  fruit  of  liis  own  toil,  for 
the  subsistence  of  himself  and  his  family,  the  term  "  laborer  " 
was  held  not  to  embrace  a  civil  engineer;"'  the  members  of 
an  engineer  corps  or  an  assistant    general    manager  ;"'  the 

166  .Jackson    v.    Collins,    '6   Cow.  Ovcriill  v.  Bczcau,  37  Mich.  506  ; 

(N.  Y.)85.  Comp.  post,  i-  270.  Barton   v.  Morris,    10   Pliila.  TPa.) 

1"  Itocliester     v.    Pcttingcr,    17  300  ;  State  v.  Yearbj-.  82  N.C.  501. 

Wond.  (N.  Y.)  205.  See   also   Eastman   v.  Cliicago.  97 

i«^  Cliadwick  v.  Collins,    26  Pa.  111.  178.     But  Comp.  State  v.  Pad- 

tSt.  138.     So,  "The  word  'dealer'  dock,  24  Yt.  312. 

alone,  in  a  variety  of  statutes,  in-  '"^  Weutworth'.s  App.,  82  Pa.  St. 

eluding  criminal  ones,  is  held  not  401). 

to  l)e  satisfied  by  a  single  instance!  '■"'  Pa.,  etc.,  R.R.  Co.  v.  LeulTer, 

of  trallic  :"   Bish.,  AYr.  L.,  g   210,  84  Pa.  St.  108. 

cit. :   Carter  v.  State,    44   Ala.  29  ;  "^  State  v.  Rusk,  55  Wis.  465. 


;§  99]  SUBJECT    MATTER  AND  OBJECT.  131 

president  of  un  insolvent  inannfuctnring  corponition,  in 
respect  of  liis  salary  ;*"  or  an  overseer.'"  So,  under  an  act 
forbiddin-^  prefei-ences  in  assignments  for  the  benefit  of 
creditors,  except  in  favor  of  laborers,  servants  and  employees, 
a,  manufacturer,  who,  under  the  contract  with  the  assignor, 
sav.'cd  at  his  own  establishment,  by  his  machinerj^  and  hands, 
a  certain  quantity  of  lumber  furnished  by  tl>e  assignoi',  was 
held  not  entitled  to  any  preference  made  in  his  favor  in 
the  assignment."*  Similarly,  under  statutes  prohibiting  the 
attachment  of  laborer's  wages,  the  pay  of  a  boss  of  a  depart- 
ment, at  a  certain  rate  per  month,  he  emplo3nng  and  dis- 
charging the  hands,  was  held  not  protected  ;"^  nor  the 
money  due  under  a  contract  to  one  who  had  contracted  to 
excavate  and  grade  a  street  at  a  certain  rate  per  cubic  yard, 
and  used  two  carts  and  several  horses  in  the  prosecution  of 
the  work,  with  a  number  of  men  sufficient,  with  himself,  to 
keep  the  carts  and  horses  employed."*  But  it  is  otherwise 
as  to  the  money  earned  by,  e.  g.,  a  miner,  by  his  own  labor, 
who  employs  a  common  laborer  to  assist  him  at  so  much  per 
day  ;"''  for  a  man  who  earns  his  livelihood  by  his  own  per- 
sonal manual  labor  is  a  laborer,  although  his  superior  skill 
and  care  may  entitle  him  to  a  greater  compensation  than  the 
common  laborer,"*  and  it  is  immaterial  whether  the  wages 
agreed  to  be  paid  are  measured  by  time,  by  the  ton,  or 
piece,  or  any  other  standard  :"'  and  the  helpers  or  assistants 
of  the  chief  workman,  where  the  nature  of  the  work  requires 

"2  Ene^land  v.  Organ,  etc.,  Co.,  elude  these  among    the  laboring 

41  N.  J.'Eq.  470.  classes."  (p.  173.) 

1"  Whitaker  v.  Smith,  81  N.  C.  ''•*  Campfield  v.   Lang,   25  Fed. 

340.     But   see    Cullins   v.    Mining  Rep.  128. 

Co.,  2  Utah,  219,  to  the  effect  tha^t  '■'^  Kyle  v.  Montgomery,' 73  Ga. 

it     includes   a   superintendent     or  337. 

foreman  of  a  mine  ;  and  Stryker  v.  '"  Heebner  v.  Chave,  5  Pa.   St. 

Cassidy,  7G  N.  Y.  50,  that  the  word  115.      But   that  a  teamster    is    a 

"  labor  "  in  the  mechanics'  lieu  law  laborer,  see  Mann  v.  Burt,  35  Kan. 

of  1862,  includes  skilled  labor,  e.  g.,  10. 

of  an   architect,    irrespectively  of  '"  Pa.    Coal  Co.  v.  Costello,  33 

the  grade  of  employment.     Com-  Pa.  St.  241. 

pare'with  this  Pa.,  etc.,  R.  R.  Co.  '''*  Ibid.     (The  decision  in  Heeb- 

V.  Leuffer,  84  Pa.  St.  168,  per  Shars-  ner  v.  Cliave,  supra,  is  doubted  in 

wood,  J. :"  It  is  true,  in  one  sense  this   case;   but   it   is   approvingly 

the  engineer  is  a  laborer  ;  but  so  is  quoted  in  Pa.,  etc. ,  R.    R.   Co.  v. 

the  lawyer  and  doctor,  the  banker  Leuffer,  supra.)  Comp.  Stryker  v. 

iind  corporation  officer,  yet  no  stat-  Cassidy,  supra, 

istician  has  ever  been  known  to  in-  '''*  Seiders's  App.,  46  Pa.  St.  57. 


132 


SUBJECT    MATTKK  AND  OBJECT. 


[§  100' 


such,  are  as  much  within  the  protection  of  these  statutes  as 
are  those  of  the  principal  workman,  though  the  former  be 
employed  by  the  latter  as  the  agents  of  the  proprietor.""  A 
"consulting  engineer"  was  held  not  to  be  a  "laborer"  or 
"  operative"  within  the  meaning  of  an  act  charging  stock- 
holders for  the  services  of  such  rendered  to  the  corpora- 
tion.'" 

§  100.  [An  act  prohibiting  wagers  or  bets  upon  the  result 
of  elections  was,  %vith  reference  to  its  object,  construed  to 
refer  only  to  elections  to  public  offices,  not  to  primary,  or 
corporate  elections."'  An  act  relative  to  costs  in  partition 
proceedings  provided  "  that  the  costs  in  all  cases  of  parti- 
tion .  .  with  a  reasonable  aHowance  to  the  plaintiffs  or 
petitioners  for  counsel  fees,  to  be  taxed  by  the  court  or 
under  its  direction,  sliall  be  paid  by  all  the  parties  in  pro- 
portion to  their  several  interests."  It  was  held  that  the 
object  of  this  provision  was  to  equalize  the  burden  of  mak- 
ing partition  ;  that,  therefore,  it  authorized  the  court  to  fix 
a  reasonable  allowance  for  plaintiff's  coutisel  fee,  graduated 
according  to  the  nature  and  extent  of  the  services  necessa- 
rily rendered  for  the  common  benefit  of  all  ;  but  not  for 
services  in  an  adversary  proceeding,  resulting  from  a  defense 
to  plaintiff's  demand  for  a  partition,  or  from  any  other 
cause."'  An  act  provided  that  "  the  widow  or  the  cliildren 
of   any   decedent  .  .  may   retain   property  to  the   value  of 


180  Ibid. 

181  Ericsson  v.  Brown,  38  Barb. 
(N.  Y.)  390. 

182  Com'lh  V.  Wells,  17  W.  N. 
C.  (Pa.)  164  ;  whilst,  from  the  same 
<;onsi(ieratlon,  a  constitutional 
provision  disqualifying  from  Iiold- 
ing  any  ofHce  of  trust  or  ])i{)til, 
and  dt'priving-,  for  the  period  of 
four  years,  of  the  riglit  of  sulTrage, 
any  person  wlio  shall,  while  a  can- 
ddale  for  office,  willfully  violate; 
any  election  law,  was  held  to 
extend  to  laws  regulating  primary, 
or  dcleirate  elections  :  Leonard  v. 
Com'thrilS  Pa.  St.  607.  Po.st.  ^ 
.')08.  In  Com'th  v.  llowe,  144 
Mass.  144.  an  act  punishing 
"whoever  ...  at  any  national, 
state,  or  municipal  election  .... 


knowlingly  gives  more  than  one 
ballot  at  one  time,"  etc.,  was  held 
inapplicable  to  a  municipal  elec- 
tion upon  a  question  of  granting 
license  for  the  sale  of  liquors.  The 
decision  is  based  upon  the  "  obvi- 
ous purpose  ■'  of  the  original  enact- 
ment and  subsequent  re-enactment 
of  the  statute,  and  upon  a  refer- 
ence to  tiie  ads  concerning  elec- 
tions in  force  at  the  time  of  the 
enactment  of  the  statute,  there  be- 
ing none  for  such  elections  (See 
ante,  ^  85),  and  to  other  acts  in 
l^ari  malcria  showing  that  the 
word  "  ballot  "  was  not  used  con- 
cerning such  elections. 

•8^'  Fidelity,  etc.,  Co's.  App.,  lOS 
Pa.  St.  339. 


§  101]  SDB.TECT    MATTER  AND  OBJECT.  133 

$300  .  .  for  the  use  of  the  widow  and  family."  The  object 
of  the  act  being  ascertained  to  be  merely  a  temporary  pro- 
vision for  the  widow  and  those  immediately  dcjoendent  upon 
the  deceased,  it  followed  that  the  allowance  could  not  be 
claimed  bj'  a  widow  who  had  dosorted  her  husband;  who  was 
living  in  a  foreign  country,  separated  from  and  her  husband 
aud  never  part  of  his  family  in  tlie  state  ;  who  had  married 
again  ;  uor  by  children  who  were  adults,  not  members  of 
the  decedent's  immediate  family,  but  who  had  left  his  home 
to  provide  for  themselves;'**  nor  by  a  widow  who  had  been 
divorced  from  the  decedent,  a  niensa  et  thoro."*  And  the 
main  purpose  being  to  provide  for  the  widow,  the  act  was 
lield  not  to  apply  to  the  property  of  a  wife  and  mother,  in 
favor  ot  her  children,  as  against  her  husband, '*°  whilst  it  did 
apply  to  the  property  of  a  widow,  in  favor  of  iier  children, 
as  against  her  creditors.'"  Again,  the  charter  of  a  railway 
company  gave  it  all  the  rights  and  privileges  for  the 
settling  and  obtaining  the  right  of  way,  then  enjoyed  by 
certain  other  railway  companies  a^so  incorporated  by 
special  acts.  The  latter  referred  to  and  designated  the 
manner  in  which  those  corporations  might  acquire  the  right 
of  way  over  private  property.  This,  therefore,  being  the 
object  and  subject-matter  of  the  provision,  the  generality  of 
its  language  was  restricted  thereto,  and  not  permitted  to 
include  or  extend  to  the  mode  of  settling  differences 
between  township  authorities  and  the  railroad  company 
when  the  latter  had  taken  possession  of  a  public  road.'**  A 
posthumous  child  of  a  brother  of  an  intestate  would  not  be 
a  "  posthumous  relation  "  within  the  meaning  of  an  intes- 
tate act  unless  born  after  the  death  of  the  intestate  ;  for  the 
reference  is  to  him.'^'' 

§  101.  [Where  an  act  provided  for  the  improvement  of  a 
road  from  the  village  of  H.  to  that  of  M.,  a  construction  of 
its  language  wath  reference  to  the  subject  matter  demonstrated 
that  the  phrase  "  from  "  the  village  of  H.  was  intended  to  in- 

18*  Nevin's  App.,  47  Pa.  St.  230.  i*^  Iline's  App.,  94  Pa.  St.  881, 

1S5  Ilettiick  V.  Hettrick,  55  Pa.  '8»  Danville,  etc.,  R.    H.    Co    v 

•St.  290.  Com'tli,  73  Pa.  St.  29,  36. 

'86  King's  App.,  84  Pa.  St.  345  ;  '^^  Shriver  v.  State,  65  Md.  278 

Wanijer's  App.,  105  Id.  346. 


l.u 


SUBJECT    MATTKK   AM)  ORIECT. 


[§  lor 


elude  a  part  of  the  saine.'""  A  statute  vvliose  main  ohject  was 
taxation,  antliorized  tlio  treasurer  to  collect  sums  to  be  paid 
by  curators  of  vacant  successions.  It  was  held  to  be  restricted 
to  sums  that  should  go  into  the  treasury  as  a  revenue,  and 
\  not  to  include  those  which  should  be  deposited  there  for 
absent  heirs  and  which  constituted  no  part  of  the  rev- 
enue."' The  object  of  the  New  Hampshire  statute  permit- 
ting an  allowance  to  be  made  by  the  probate  judge  to  a 
widow,  out  of  lier  deceased  husband's  estate,  for  her  "  pres- 
ent supj^ort  "  being  tiuit  of  a  provision  for  her  immediately 
after  her  husband's  death,  there  was  held  to  be  no  authority 
for  making  her  the  allowance  after  the  lapse  of  several  years, 
upon  settlement  of  the  estate.'"  Where  the  charter  of  a 
cemetery  company  provided  that  a  certain  number  of  acres 
of  land  should  be  forever  appropriated  and  set  apart  as  a 
cemetery,  which,  so  long  as  used  as  such,  should  not  be  lia- 
ble to  any  ta.x  or  public  imposition  whatever,  it  was  held, 
that,  as  the  object  was  to  exempt  the  property  from  all 
taxes  and  charges  imposed  for  the  purpose  of  revenue,  but 
not  to  relieve  it  from  impositions  inseparably  incident  to 
the  location  in  regard  to  other  propcrt}',  a  paving  tax,  for 
paving  the  street  in.  front  of  the  property  in  question  was 
not  embraced  in  the  exemption,  notwithstanding  the  general 
and  sweeping  language  in  which  it  was  declared.'" 

[On  the  general  principle  under  discussion  would  seem 
also  to  rest  the  rule  that  an  act  adopting  another  by  refer- 
ence does  not  adopt  it  beyond  the  purposes  of  the  new 
act.'"^ 


"0  Sniilli  V.  IMmer,  7  Barb.  (N. 
Y.)  410. 

""  i^iicccssioii  of  D'Aquin,  0  La. 
All.  400  ;  Lcakc  v.  Linton,  G  Id. 
2()2. 

18^  Hubbard  v.  Wood,  15  N.  H. 
74.     Four  3-oars  had  clnpscd 

"^  Baltimore  v.  Grccnmount 
Com'y,  7  M(L  517.  And  sec,  to 
simiiiir  effect  :  lie  Mayor,  etc.,  -jf 
New  York,  11  Jolins.  (N.  \ .)  81  ; 
Bleeckcr  v.  B;diou.  3  Wend.  (N. 
Y.)  2U:3  ;  People  v.  Brooklyn,  4  N. 
Y.  (4  Coni'^t.)  429.  But,  where  (ho 
charter  of  ii  cemetery  company 
provided  th:it  the  lands  thereof 
should  l)e  "  exempt  from  taxation. 


except  for  state  purposes,"  and  the 
city  Avilhin  whose  boundaries  they 
lay,  and  which  had  constructed  a 
sewer  on  a  street  alonii'  the  line  of 
Avhich  pari  of  the  company's  bury- 
ing lots  la}%  and  had  levied  an 
assessment  upon  them  to  defray 
part  of  the  cost  of  such  improve- 
ment, it  was  held  that  the  as.sess- 
ment  was  a  species  of  local  taxation 
and  within  the  exemption  clause 
of  liie  charter  :  Olive  Cemy  Co.  v. 
Philad.'lphia,  93  Pa.  Wt.  129. 

"^  (;om'th  V.  Belts,  70  Pa.  St. 
405,  471  ;  Graver  v.  Fehr,  89  Id. 
400,  404.  In  Jones  v.  Dexter,  8 
Fla.»270,  it  is  said   that  a  reference 


§§  102,   103]  SUBJKtT    MAiriOK   AND    OBJECT.  135 

§  102.  Object  may  Supply  Unexpressed  Condition.— [A  COllsid- 
enition  of  the  object  and  suhjoct  inattLT  of  iiii  act  may  also 
circumscribe  tlie  broad  meaning  of  words  b}'  supplying  that 
in  the  language  of  the  statute  which  must  have  been  the 
intention  of  the  same  but  is  not  expressly  stated.  Tims, 
where  a  statute  required  insurance  companies,  before  com- 
mencing business,  to  liave  a  certain  amount  secured  by 
mortgage  "on  nnencuinbered  real  estate,"  it  was  held  that 
the  land  must  be  within  the  state.""*  So,  under  an  act  which 
entitled  a  defendant  against  whom  judgment  had  been  recov- 
ered to  a  stay  of  execution,  if  he  "  in  the  opinion  of  the 
court  is  possessed  of  a  freehold,  worth  the  amount  of  such 
judgment  clear  of  all  incumbrances,"  it  was  held  that  the 
freehold  must  be  within  the  county  where  the  judgment 
was  entered.""  The  object,  in  each  instance,  was  to  create 
or  furnish  a  security.  In  order  to  be  effectual,  the  security, 
in  the  first  case,  must  be  within  the  state's  jurisdiction,  in 
the  latter,  within  the  reach  of  the  judgment  creditor  and 
the  efficac}^  of  the  judgment  as  a  lien.'"] 

§   103.    Beneficial  Construction. — It   is    said    to    be    the  duty 

of  the  judge  to  make  such  construction  of  a  statute  as 
shall  suppress  the  mischief  and  advance  the  remedy  (a); 
and  the  widest  operation  is  therefore  to  be  given  to  the  en- 
actment, so  long  as  it  does  not  go  beyond  its  real  object  and 
scope.  When,  for  instance,  the  language,  in  its  usual  mean- 
ing, falls  short  of  the  whole  object  of  the  legislature,  a  more 
extended  meaning  may  be  attributed  to  it,  if  fairly  suscept- 
ible of  it.  Tiie  scope  of  the  Act  being  ascertained,  the 
words  are  to  bo  construed  as  including  every  case  clearly 
within  that  object,  if  they  can  do  so  by  any  reasonable  con- 
in  one  act  to   anotlier  incorpoiates      (Pa.)  432. 

ill   tlie   former    only   the    general  '^^  No  distinction  has  been  made 

powers  and  provisions  of  the  hitter,  in  the  application  of  the  rule  dis- 
not  the  special  ones;  such  only  as  cussed  in  this  chapter,  as  between 
will  stand  with  reason  and  right:  penal  and  other  statutes.  A  glance 
and  that  the  incorporated  provis-  at  the  decisions  cited  will  show 
ions  will  be  more  liberally  con-  that  the  rule,  thus  far,  applies  to 
strucdin  the  incorporating,  than  in      both  classes. 

the     incorporated     statute.        See  (a)  Heydon's   Case,   3   Rep.    7b. 

Quinn  v.  Fid.  Ben.  Ass'n,  post,  Per  Lord  Kenyon  in  Turtle  v. 
§  108.  Hartwell,  6  T.  K.  4'29  ;  per  Cock- 

'^^  State  V.  King,  44  Mo.  283.  burn,  C.  J.,  in  Twycross  v.  Grant, 

196  Com'th  V.  Meredith,  2  Binu.      2  C.  P.  D.  530. 


1156  SUBJECT    MATTEli  AND  OUJECT.  [§  103 

fitniction,  altliough  they  point  primaiily  to  luiotlier  or  a  more 
limited  class  of  oases  (a).  Thus,  Acts  which  gave  a  ''single 
Nvoman  "  who  had  a  bastard  child  the  right  to  sue  the  putative 
lather  for  its  maintenance  have  been  held  to  include  in  that 
expression,  not  only  a  widow  (J),  but  a  married  woman  liv- 
ing apart  from  her  husband  (c) ;  for,  the  general  object  of 
the  Act  being  to  compel  men  to  contribute  to  the  support  of 
their  illegitimate  offspring,  even  a  married  woman  living 
under  circumstances  incompatible  with  marital  access,  though 
not  in  popular  language  a  single  woman,  is  nevertheless,  for 
the  purposes  of  the  Act,  and  therefore  in  the  contemplation 
of  the  legislature,  as  "single"  as  a  woman  who  has  no  hus- 
band. [So,  where  the  object  and  context  of  a  statute  require 
it,  the  phrase  "  single  man  "  may  be  taken  in  a  generic  sense, 
as  including  an  unmarried  woman,'"*  And  under  a  statute 
punishing  an}'  person,  who,  in  the  night,  should  willfully 
disturb  any '' neighborhood  or  family,"  an  indictment  lies 
for  disturbing  a  wotnan  occupying  a  dwelling-house  alone."' 
So,  a  surety  was  held  included  in  the  phrase  "  co-partners,  or 
joint  or  several  obligors,  or  promissors,  or  contractors,"  the 
death  of  one  of  whom  was  not  to  discharge  his  estate.""" 
And  an  act  giving  to  a  married  woman  the  power  to  convey, 
with  the  assent  of  her  husband,  any  real  or  personal  proper- 
ty which  might  come  to  her  by  "gift  of  any  person  except 
her  husband,"  was  held  to  confer  the  right  to  alienate  land 
conveyed  to  her  by  a  third  person  for  a  pecuniary  considera- 
tion."' The  word  "grain,"  in  a  penal  statute,  was  held  to 
include  millet,  or  sugar  cane  seed, °"''  and  the  phrase  "inhab- 
ited dwelling  house,"  in  a  statute  against  arson,  to  embrace  a 

(a)  Per  Cleasby.  B.,  iu  Scott  v.  water  basin  whicli  was  a  necessary 

Lefrg,  3  Ex.  D.  4'3.  adjunct    or    appurtenance   to   the 

ip)   Antony    v.     Curdenliam,    2  mill,  was  in  a  certain  county,  the 

Bott,  194  ;  11.  V.   Wymoudham,  2  remainder  being  in  another,  it  was 

Q.  B.  541.  licld  that  this  was  a  "single  tene- 

(c)  11.  V.  Pilkington,  2  E.  &  B.  nient"  within  the  meaning  of  the 

546,  S.  C.  nom.  Exp.  Grimes,  22  statute  giving  juiisdiction  to  the 

L.  J.  M.  C.  153  ;  R.  v.  Collingwood,  court  of  either  county  :  Finney  v. 

12  Q.  B.  G81  ;  K.  v.  Lufle,  8  East,  Sonicrville,  80  Pa.  St.  59. 

193.     CJomp.    Stacey    v.  LinteJl,  4  '^^  ISoe  v.  People.  39  111.  9G. 

Q.  B.  D.  291.  2"'*  Bowman   v.    Kistler,    33   Pa. 

'8«  Silver  v.  Ladd,  7  Wall.  217.  St.  100. 

Where  a  part  of  an  entire  tract  of  ^'"  Chapman  v.  Miller,  128  Mass. 

land  upon   which    plaintiff's   mill  269. 

was   built,  including  the  pond   or  ^os  jjolland  v.  State,  34  Ga.  456. 


§   J  03]  SUBJECT    MxV'lTEK  AXD  OIUICCT.  137 

jciil.""']  The  authority  given  b}'  tlie  Municipal  Corporations 
Act  to  expend  the  local  funds  upon  "  corporate  buildings" 
was  construed  as  extending  to  the  cost  of  lining  the  corpor- 
ation pew  in  the  church  (a).  [So,  under  a  statute  authorizing 
the  destruction  of  a  building,  by  order  of  the  mayor  of  a 
city,  to  prevent  the  spreading  of  a  conflagration,  and  a 
recovery  against  the  municipality  in  favor  of  the  owner  and 
all  persons  Iiaving  any  estate  or  interest  thei'ein,  it  was  held 
that  injury  to  personal  property  in  the  building  could  be 
recovered  by  the  tenant  occupying  the  same,  in  addition  to 
the  recovery  by  the  owner  of  the  building  itself  for  the 
damage  done  to  it."*]  An  Act  which  required  a  rail- 
way company  to  make,  foi-  the  accommodation  of  the 
owners  and  occupiers  of  the  adjacent  lands,  sufBcient 
fences  for  protecting  the  lands  from  trespass,  and  the  cattle 
of  the  owners  and  occupiers  from  straying  thereout,  was 
held  to  include  in  the  term  "  occupier  "  a  person  who  merely 
had  put  his  cattle  on  laud  with  the  license  of  the  occupier  (a). 
And  the  same  word,  even  when  coupled  with  "owner,"  has 
been  construed,  with  the  view  of  promoting  the  object  of 
the  enactment  and  reaching  the  mischief  aimed  at,  as  includ- 
ing a  person  standing  on  a  spot  in  a  park  or  place,  where  he 
had  no  more  right,  to  stand  than  any  other  person  (h).  So,  it 
was  held  that  a  fishing-boat  of  ten  tons  provided  with  masts, 
which  unshipped,  and  sails  used  for  going  to  sea,  but  which 
was  propelled  by  four  oars  in  harbor  and  shallow  water, 

203  People  V.  Cotteral.  18  Johns,  not  to  be  the  grant  of  a  right  of 
(N.  Y.)  115  ;  Com'th  v,  Posey,  4  eminent  domain,  and  therefore 
Call  (Va.)  lO'J.  not  within  the  constitutional  pro- 

(rt)  5   &   6  W.    4,  c.    76  ;   R.  v.  vision  requiring  compensation  for 

Warwick,  8  Q.  B.  920.  .  the  taking  of  private  property;  but 

204  ]S[ew  York  v.  Lord,  17  Wend,  the  provision  of  the  statute  was 
(N.  Y.)2S5;  18  Id.  12G.  But  this  only  the  regulation  of  a  right  which 
doctrine  was  not  extended  so  as  to  even  individuals  possess,  in  cases 
permit  the  lessee  to  recover  the  of  inevitable  necessity,  of  destroy- 
value  of  merchandize  destroyed  ing  property  to  prevent  an  impend- 
which  did  not  belong  to  him,  but  ing  calamity.  Sec  Klopp  v.  Live 
Avas  tlie  property  of  oti-.ers,  in  his  Stock  Ins.  Co.,  1  Woodw.  (Pa.) 
possession  as  factor,  or  merely  on  445. 

storage:    Stone   v.  New  Y^ork,  25  (a)  Dawson  v.  Midland  R.  Co..  8 

Wend.  (N.  Y.)  177.     See  ante,  i^  96,  Ex.  8  ;  and  see  Kittow  v.  Liskeard, 

U.  S.  V.   Viilalonga,  2:5  Wall.'  35.  L.  K.  10  Q.  B.  7.     [See  ante.  §  95.] 

The  authority  conferred  upon  the  (b)  See   Doggelt  v.    Cattarns,   34 

mayor  to  order  tiie  deslnu;tion  of  L.  J.  C.  P.  46;  Bows  v.  Fenwiek, 

a  building  in  such  cases  was  held  L.  R.  9  C.  P,  339.    [See  ante,  §  90.] 


138  SUBJF.C'r  MATTKK  AND  (tB.IKCT.  [§§  10-i,   105 

■was  "a  ship"  within  the  Merchant  Shipping  Act  of  1862, 
wliieh  provides  that  when  a  collision  between  two  "ships" 
takes  place,  the  master  of  each  ship  is  bound  to  render 
assistance  to  the  other,  on  pain  of  the  cancellation  or  suspen- 
sion of  his  certificate.  Though  the  Merchant  Shipping  Act> 
1854,  s.  2,  enacted  that  the  term  "sliip"  should  "have  the 
meaning"  thereby  "assigned"  to  it,  viz.,  that  it  should 
"include  every  description  of  vessel  used  in  navigation  not 
propelled  by  oars,"  this  was  considered  not  to  be  a  definition, 
and  as  not  excluding  vessels  which  it  did  not  include  (a)- 
[Similarh-,  the  term  "  vessel  "  has  been  applied  to  a  floating 
elevator,  unlicensed,  unenrolled,  with  no  motive  power  or 
capacity  for  other  cargo  than  the  elevator;'"  and  under  a 
statute  giving  a  lien  to  the  builder  of  a  vessel,  it  was  held  to 
include  a  canal  boat.""  In  a  statute  allowing  recovery  of 
damages  for  injuries  to  a  man's  team,  cattle  or  horses  driven 
in  droves  along  the  highway,  are  held  included;'"  and  a 
"  yoke  "  of  oxen,  in  an  exemption  statute,  is  not  necessarily 
confined  to  cattle  broke  to  work,  if  they  are  intended  by 
their  owner  for  use  as  work  cattle  and  are  old  enough  to 
be  so  used.^°*  Under  a  similar  statute,  a  "  buggy "  is  a 
''  wagon."'-'""] 

§  101.  "Done"  including  "Omitted." — The  statutes  which 
require  notice  of  action  for  anything  "  done  "  under  them  are 
construed  as  including  an  omission  of  an  act  which  ought  to 
be  done  as  well  as  the  commission  of  a  wrongful  one  (/>). 

§  105.  Qui  facit  per  Alium,  etc.— A    statute    which   requires 

(a)  In  re  Fcrgusson.  L.  R.  G  Q.  Townsend  Sav.  B'k  v.  Epping,  3 

B.  280.     Comp.  The  Mac,  7  P.  D.  Woods.  890.] 

38.     See  36  &  37  Vict.  c.  85,  .s.  IG.  -"•  The  Ilezekiah.  8  Ben.  55G. 

[A  statute  of  Georgia,  of  184-.i,  gave  -"'^  King  v.  Greenway,  71  i^.  Y. 

a  lien  to  those  furnishing  lo^s  to  413. 

steam  saw  mills.     The  act,  of  1807  -""Elliott   v.  Lisbon,  57  K  H. 

repealed  this  act  as  lo  all  .saw-milis  27. 

up'Hi  the   several    moutlis   of    the  -^^  Mallcry   v.    Berry,    16   Kan 

Altamalia,   and  declared   that   tlie  294. 

'•  months  of  the  Altamalia  "  slioiild  ""^  Allen  v.  Coates,  29  Minn.  46; 
include  all  mills  within  10  miles  of  and  so  is  a  hearse  :  Spikes  v.  Bur- 
Da  ricn,  in  a  straight  line.  It  was  gess,  05  Wis.  428. 
licld  that  amill,  not  stricily  on  one  (A)  Wils(/n  v.  Halifax,  L.  R  3 
of  s;d(l  mouths,  hut  wilhinlO  miles  Ex.  114  ;  Poulsum  v.  Thirst,  L.  R. 
of  1).  l)y  a  .straight  line,  was  within  2  C.  P.  449  ;  see  also  Davis  v.  Curl- 
Ihe   terms   of    the    act   of    1857:  inir,  8  Q.  li.  286  ;  Newton  t).  Ellis^ 

5  E.  &  B.  115. 


§  105]  SUBJECT   MATTER    AND    OBJECT.  130 

sometliing  to  be  done  by  a  person  would  be  complied  with, 
in  general,  if  the  thing  were  done  by  another  for  him  and 
by  his  authority  ;  for  it  would  l)e  presumed  that  there  was 
no  intention  to  prevent  the  application  of  the  general  princi- 
ple of  law  that  qui  facit  per  alium  facit  per  se ;  unless  there 
was  something  either  in  the  language  or  in  the  object  of  the 
statute  which  showed  that  a  personal  act  was  intended.  On 
this  ground,  an  Act  of  Parliament  which  requires  that  notice 
of  appeal  shall  be  given  by  churchwardens  is  complied  with 
if  given  by  their  attorney  {a)  ;  [and  a  statutory  requirement 
of  an  oath  to  be  administered  "  by  the  court  or  judge"  is 
satisfied  by  an  oath  administered  by  the  clerk  of  the  court, 
in  open  court,  under  the  direction  of  the  court,  and  tested 
by  the  clerk.''"]  So,  the  Dramatic  Copyright  Act,  3  &  4 
Will.  4,  c.  15,  which  requires  the  v;ritten  consent  of  the 
author  of  a  drama  to  its  representation,  would  be  sufficiently 
complied  with  if  the  consent  were  given  by  the  author's 
agent  {h).  AVhen  an  Irish  Statute,  after  giving  to  tenants 
for  lives,  or  for  more  than  fourteen  years,  the  right  of  felling 
any  trees  which  they  had  planted,  required  that  ''  the  tenant 
so  planting"  them  should  file  an  affidavit  within  twelve 
months,  in  a  form  given  by  the  Act,  which  purported 
throughout  to  be  made  by  the  tenant  personally,  the  House 
of  Lords  construed  the  Act  as  satisfied  by  the  affidavit  of 
the   tenant's    agent.     A  stricter  construction,  it    was   said, 

(a)  K.  V.  Middlesex,  1  L.  M.  &  ciple  here  discussed  is  tliat  iuvolved 
P.  021  ;  R.  V.  Carew,  20  L.  J.  M.  in  the  decision  in  Borliii  v.  Eliiih- 
C.  44n.;  11.  v.  Kent,  8  Q.  B.  815.  hevgei;  104  Pa.  St.  143,  that  an  act 
See  other  instances  in  Walsh  v.  authorizing  the  recorder  of  deeds 
Southworth,  20  L.  J.  M.  C.  105,  3  to  certify  the  recognizances  of  tlie 
L.  M.  &  P.  91  ;  R.  V.  Huntingdon-  sheriff,  talicn  by  him,  to  the  pro- 
shire,  1  L.  M.  it  P.  78  ;  Cliaries  v  tliouotary,  in  order  to  create  a  lien 
Blaclvwell,  1  C-  P.  D.  548;  Ue  on  the  lands  of  tiie  sureties,  etc., 
Lancaster.  3  Ch.  D.  498;  Nicholson  was  complied  with  by  a  trausmis- 
V.  Hood.  9  M.  &  W.  :!05  ;  Brooker  sionof  aceilitied  copy  of  such  recog- 
V.  Wood,  5  B.  it  Ad.  1052  ;  Jory  v.  nizance.  See  ante  1 19.  But  under 
Orchard,  2  B.  &  P.  39;  Philpa  v.  an  act  requiring  anaffidavit  of  loss 
Winchcomb,  3  Bulstr.  77.  Comp.  to  be  served  on  a  railway  company 
Hider  v.  Douell,  1  Taunt.  383.  in  order  to  render  it  liable  for  stock 
[See  ante,  ^  74,  Ruthbun  v.  killed  on  its  track,  service  of  the 
Acker,  18  Barb.  (N".  Y.)  393,  that  original  affidavit  is  essential,  and 
a  requirement  of  notice  to  a  person,  that  of  a  copy  tliereof  insufficient  : 
in  a  statute,  prima  facie  means  Col(!  v.  R.  R.  Co.,  38  Iowa  311. 
personal  notice  to  him.]  (i)  Morton  v.  Copeland,  10  C  B. 

•^'0  Oaks  v.  Rogers,  48  Cal.   197.  517,  24  L.  J.  109. 
Somewhat  analogous  to  the  prin- 


140  SUBJECT   MATTER    AND    OBJECT.  [§  105 

-would  liavc  rendered  the  Act  iiiai)i)lieal)le  to  most  of  the 
•■cases  which  it  had  in  view  («).  [So,  under  various  statutes 
requiring,  in  certain  actions,  that  tlic  defendant,  within  a 
specified  time,  should  file  an  affidavit  of  defense,  and  author- 
izing the  entry  of  judgment  for  plaintiff  in  default  thereof, 
it  has  been  held,  that,  in  order  to  prevent  frequent  failures 
of  justice,  an  aflSdavit  of  defense  maj^,  in  cases  of  disability 
or  absence  of  defendant,  be  made  by  another  person,  conu- 
sant of  the  facts,  and  acting  for  the  defendant,  and  always 
by  a  party  in  interest  though  not  of  record.'"'] 

The  principle  is  well  illustrated  by  two  decisions  under 
the  G  &  T  Vict.  c.  18,  which  required  that  the  person  wlio 
objected  to  a  voter  should  sign  a  notice  of  his  objection,  and 
<leiiver  it  to  the  postmaster.  This  was  held  to  require 
.personal  signature,  but  not  personal  delivery  or  receipt.  It 
was  material  that  the  person  objected  to  should  be  ai)le  to 
ascertain  that  he  really  was  objected  to  by  the  objector, 
w-hich  he  could  not  so  easily  do  if  a  signature  by  an  agent 
was  admitted  ;  just  as,  to  guard  against  personation,  the  sig- 
nature of  a  voting  paper  under  the  former  Municipal  Corpor- 
ations Act  must  be  personal  and  not  by  agent  (h).  But 
there  was  no  valid  reason  for  supposing  that  the  legislature 
did  not  intend  to  give  effect  to  the  rule  qui  facit  per  alium 
facit  per  se,  in  the  case  of  the  mere  delivery  (c).  The  knowl- 
edge of  the  servant  may  be  constructively  that  of  the  master 
within  the  meaning  of  an  Act,  even  when  making  the 
master  penally  responsible  (d).  An  Act  (18  &  19  Vict.  c. 
121)  which  authorizes  justices  to  summon  a  person  by  whose 
act  a  nuisance  arises,  or,  if  that  person  cannot  be  ascertained 
the  occupier  of  the  premises  in  which  it  exists,  was  held  to 
authorize  the  summoning  of  the  occupier,  if  the  person  who 

(a)  Mouiitcasliel  v.  O'Neil,  5  11.  (b)  5  &  6  Wm.  4.  c.  76,  s.  32  ;  R. 

L.  !)37.  V.    Tart,  1  E.  &  E.  618,  28  L.  J. 

*'•  See   Sleeper  v.  Dougherty,  2  173  ;  fiiid  see  Monks  v.  Jackson,  1 

Wliart.    (Pa.)  177;   West  v.  Sim-  C.  P.  I).  683. 

mons,  Id.   261  ;  Hunter  v.  Keilly,  (c)  Cuming  v.  Toms,  7  M.  &  Gr. 

■  36  Pa.    St.   509;   Frailey  v.  Stein-  29  and  88. 

melz,    22    Id.    437:    Marshall    v.  (r/)  Core  v.  James,  L.  J.  7  Q.  B. 

Wittc,  1  Phila.  177.     And  see  to  Id'),  l^er  jAish,  J.;  li.  v.  Stephens, 

similar  ellect.  Bingham  v.  Athna,  "L.  R.  1  Q.  B.  702 
.(Ill.)2Mon.  Jur.  125. 


§§  106,  107]     SUBJECT  MA'lTi:ii  AXD  OBJECT.  141 

]iad  actually  done  the  act  was  his  servant,  since  in  law  the 
act  of  the  latter  is  that  of  the  former  {a). 

§  106.  On  the  other  hand,  Lord  Tentendcn's  Act,  9  Geo.. 
4,  which  requires  an  acknowled»jjinent  "  signed  by  the  party 
chargeable  thereby,"  to  tal<e  a  debt  out  of  the  Statute  of 
Limitations,  has  been  held  to  require  j3ersonal  signature,  and 
not  to  admit  of  a  signature  by  an  agent  (1)).  But  this  con- 
struction was  based  partly  on  the  circumstance  that  another 
Statute  of  Limitations  made  express  mention  of  an  agent 
(c).  Where  an  Act  required  that  notices  should  be  signed 
by  certain  public  trustees,  or  by  their  clerk,  it  was  held  that 
the  signature  of  the  clerk  of  their  clerk,  who  had  a  general 
authority  from  his  employer  to  sign  all  documents  issuing 
from  his  office,  was  not  a  compliance  with  the  Act  {d).  [An 
act  requiring  the  oath  of  the  prineijial  is  not  in  general  com- 
plied with  by  an  oath  of  his  agent/'^  So,  <?.  (/.,  under  an  act 
authorizing  the  issuing  of  a  distress  warrant  for  rent,  upon 
the  oath  of  the  person  to  whom  the  rent  is  due.**^] 

Again,  where  the  statute  required  tliat  the  act  should  be 
done  by  the  party  "himself,"  it  would  hardly  admit  of  its 
being  done  by  an  agent,  as  in  the  case  of  the  provision  that 
the  nomination  paper  of  a  candidate  for  municipal  office 
should  be  delivered  to  the  town  clerk  by  the  candidate  him- 
self, or  his  proposer  or  seconder  (e). 

§107.  Liberal  Construction  of  Remedial  Acts. — [Although] 
even  Criminal  Statutes,  which  are  subject  to  the  strictest 
construction,  are  found  to  furnish  abundant  illustrations  of 
giving  an  extended  meaning  to  a  word  (/),  [the  method 
of  interpretation  under  discussion  is  particularly  and  most 
liberally   applied     to  so-called   remedial  statutes, — statutes 

(«)  Barnes  v.  Ackroyd,  L.  R.  7  as  to  acknowledgment  by  wife  and 

Q.  B.  474.  husband  respectively,  of  theolher's 

{b)  Hyde  v.  Johnson,  2  Bing.  N.  debt.] 

C.   778.     See  also  Swift  ®.  jews-  (d)  Miles  v.  Bough,  3  Q.  B.  845. 

bury,  L.  R  9  Q.  B.  ^01  ;  Williams  '■''•^  See  People  v.  Fleming,  3  N. 

V.   Mason,  28  L.  Times,  283  ;  Bar-  Y.  (3  Comst.)  484  ;  Philadelphia  v. 

wick  V.  London  S.  Bank,  L.  R.  3  Devine,  1  W.  N.  C.  (Pa.)  858. 

Ex.  359.  "^  Howard  v.  Dill,  7  Ga.  53. 

(c)  See  ante,  §  53.      [Compare,  {c)  I\Ionks  c.  Jackson,  1  C.  P.  D, 

iipon  this  subject,  3  Pars.,  Contr.  G83.     The  i^Iunic.  Corp.  Act,  1883,^ 

pp.  79,  et  seq.     But  see  :  Powers  omits    "himself;"  see  3rd  Sched- 

«.     Southiiate,     15    Vt.    471,    and  ule,  part  3,  s.  7. 

Orcutt  v.^Berrett,  13  La.  An.  178,  (/)  See  infra,  §§  339,  330. 


142 


SUBJECT    MATTEU  AND  OBJECT. 


[§10S 


"  made  from  time  to  time  to  supply  defects  in  the  existing 
law,  wlietiier  arising  from  the  inevitable  imperfection  of 
Imiiian  legishition,  from  change  of  circumstances,  from  mis- 
tak(>,  or  any  other  cause.'"'''*  Of  such  statutes,  as  distinguished 
from  penal  statutes,""^  more  esj)ecially  is  it  said  that  they  are 
to  be  construed  liberally,  to  carry  out  the  ])ui'pose  of  the 
enactment,  suppress  the  mischief  and  advance  the  remedy 
contemplated  by  tlie  Legislature  ;"'"  i.  e.,  and  this  is  all  that 
liberal  construction  consists  in — they  arc  to  be  construed 
"  giving  the  woi'ds  .  ,  the  largest,  the  fullest,  and  most 
extensive  meaning  of  which  they  are  susceptible.'""  The 
object  of  this  kind  of  statutes  being  to  cure  a  weakness  in 
the  old  law,  to  supply  an  omission,  to  enforce  a  right,  or  to 
redress  a  wrong,  it  is  but  reasonable  to  suppose  that  the 
Legislature  intended  to  do  so  as  effectually,  broadlj'  and 
completely,  as  the  language  used,  when  understood  in  its 
most  extensive  signification,  would  indicate, 

§  108.  What  are  Remedial  Acts. — [It  would,  of  COUrse,  be 
impossible  to  enumerate,  in  detail,  the  different  classes  of 
statutes  which  go  to  make  up  this  great  division.  A  few  of 
the  more  prominent  ones,  in  which  the  rule  of  liberal  con- 
struction seems  most  generally  recognized,  nuiy,  however,  be 
mentioned  as  illustrations.  Such  are  statutes  having  for 
their  end  the  promotion  of  important  and  beneficial  public 
objects;*"  e.  g.,  in  connection  with  the  necessary  regulation 
and  regular  supply  of  a  great  and  growing  city  ;*'"    or  curing 


^'^  Sedw.  p.  33.  And  see  Avery 
V.  Grotou,  36  Conn.  304. 

215  '<  Of  jj]i  clussittcutions  of  acts 
of  Parliament  tlie  most  importiiut 
is  that  by  which  they  are  divided 
into  liemediid  und  Penal  Statutes, 
or  latiier  into  snt^li  us  are  construed 
lil)eially  and  sueli  as  are  construed 
striftly  :"     Wilb.  230. 

•■'i«  See  Vis^o's  Case,  31  Wall.  648; 
Smith  V.  Moliat,  1  Barb.  (N.  Y.) 
65  ;  Hudler  v.  Golden,  36  N.  Y. 
44() ;  Smith  v.  Stevens,  83  HI.  554  ; 
Chicnu^o,  etc.,  P.  P.  Co.  v.  Dunn, 
53  Id.  3(j0  ;  Jackson  v.  Warren,  33 
Id.  331  ;  Davenport  v.  Barnes,  3  N. 
J.  L.  311  ;  Poor  Distr.  v.  Poor 
Distr.,  109  Pa.  St.  579;  Hnssen- 
plug's  A])p.,  100  Id.  537:  Quinn 
V.    Fidelity   Ben.    Ass'n,    100    Id. 


383  ;  Schuylkill  Nav.  Co.  v.  Loose, 
19  Id.  15  ;  Cullerton  v.  Mead,  33 
Cal.  95  ;  White  v.  'J'he  Mary  Ann, 
6  Id.  463 ;  Fox  v.  Kew  Orleans,  13 
i^a.  An.  154;  Fox  v.  Shx),  10  Id. 
11  ;  Fraidclin  v.  Franklin,  1  Md. 
Ch.  343;  MeCormick  v.  Alexander, 
3  Oliio,  74;  Pe^see  of  iJuriiett,  1 
Pi.  481  ;  Pancoast  V.  Jiullin,  Id. 
385  ;  Wilber  v.  Paine,  Id.  356  ; 
State  v.  Blair,  33  lud.  313  ;  While 
Co.  V.  Key,  30  Ark.  603,  and  cnses 
infra.  See  also  Bish.,  Wr.  L.  § 
130. 

•-'^  Wilb.,  p.  335. 

-'5  Sec:  INew  Orleans  v.  St. 
Homes,  9  La.  An.  573  ;  Woleott  v. 
Pond,  19  Conn.  597. 

"'9  Marshall  v.  Vultec,  1  E-  D. 
Smith  (N.  Y.)  394. 


108] 


SUBJECT    MATTiai  AND  OBJECT. 


143 


in-e<j;iiliirities  in  the  formation  of  school  districts.""  So,  an  act 
perinlttino-tlicCIty  of  New  York  to  enlar<>-e  the  shps  forship- 
pini;  was  hekl  to  inchule  both  lengthening  and  widening, 
and  not  to  be  limited  to  those  already  existing.""  Similarly, 
the  phrase  "internal  improvements,"  in  a  statute  conferring 
powers  in  aid  of  such  ui)on  a  municipality  would  not  be 
construed  to  mean  merely  improvements  internal  to  the 
tov/n.""  Such  again  are  statutes  relating  to  the  administration 
of  justice,'"  and  the  practice  of  the  law  ;"'  e.  j/.,  statutes  per- 
mitting amendments,'"  giving  the  right  of  appealj-'orextend- 
iug,'"  or  preserving'"'  the  same"";  providing  for  the  arbitration 
of  causes;""  allowing  the  Court  to  open  judgments,  obtained 
by  fraud,"'  or  to  open,  re-examine  and  correct  the  accounts 
of  public  officers."'  To  illustrate  :  an  act  passed  in  1857 
authorized  suits  to  be  brought  against  fire  insurance  com- 
panies in  the  county  in  which  "the  property  insured"  may 
be  located  ;  an  act  passed  in  1868  extended  "  all  the  provi- 
sions" of  the  act  of  1857  to  life  and  accident  insurance  com- 
panies, and  it  was  held  that  suit  might  thereafter  be  brought 
against  life  insurance  companies  in  the  county  where 
the  person  insured,  resided,  on  the  ground  that  the  act  of 
1868  was  a  remedial  one,  and   that,  without  this  adaptation 


2'^o  Stratford  Sell.  Distr.  v. 
Ufford,  53  Conn.  44. 

221  Ibid. 

222  See  Wetumpka  v.  Winter,  29 
Ala.  651 ;  also  Low  v.  Marysville,  5 
Cal.  214. 

2-3  xMitcliell  V.  iMitchell,  1  Gill. 
(Md.)  G6.  And  see  Russell  v. 
Wheeler,  Hemps.  3,  that  statutes 
creating  limited  jurisdictions  are 
to  be  construed  liberally  as  to  the 
procedure  :  see  §^  152,  351. 

221  Receivers  v.  Sav.  E'k,  10  N. 
J.  Eq.  304. 

225  Fidler  v.  Hershey,  90  Pa.  St. 
3G3  ;  so  as  to  apply  to  equity  pro- 
ceedings as  well  as  actions  at  law  : 
Dick's^Vpp.,  106  Id.  589,  596  ;  and 
to  authorize  an  amendment  of  a 
declaration  after  verdict  and  before 
judgment  :  Bolton  v.  King,  105  Id. 

22'i  Pearson  v.  Lovejoy,  53  Barb. 
(N.  Y.)  407.  An  act  requiring  the 
court,  upon  request,  to  reduce  its 
"  opinion  ''  to  writing  and  tile  the 


same  of  record,  for  purposes  of 
review  by  a  court  of  errors,  was 
held  to  embrace  charges  delivered 
to  juries,  as  well  as  what  is  more 
technically  called  an  opinion: 
Wheeler  v.  Winn,  53  Pa.  St.  122, 
127;  Downing  v.  Baldwin,  1  Serg. 
&  R.  (Pa.)  298,  300. 

221  Converse  v.  Burrows,  2  Minn. 
229. 

228  Arceneaux  v.  Benoit,  21  La. 
An.  673. 

229  So  provisions  requiring  asses- 
sors to  sit  to  revise  assessments, 
are  to  be  liberally  construed  in 
favor  of  tax  payer  :  Walker  v. 
Chicago,  50  III.  277. 

230  Tuskaloosa  Bridge  Co.  v. 
Jcmison,  33  Ahi.  476.  But  see 
Burnside  v.  Whitney,  21  N.  Y. 
148,  contra. 

231  Sharp  V.  New  York,  31  Barb. 
(N.  Y.)  572. 

232  White  Co.  V.  Key,  30  Ark. 
603. 


144  SURTKCT  MATTER  AND  OBJECT.  [§§  109,    110' 

of  the  phrase  "  property  insured  "  to  the  subject  matter  of 
tlie  enactment "  the  provision  would  be  meaninoless."^ 
Again,  wliere  an  act  directed  the  court  of  common  pleas 
out  of  which  any  commission  in  the  nature  of  a  writ  do 
Innatico  inqiiireudo  should  issue,  to  decide  and  direct  wlio 
should  pay  all  the  costs  attendant  upon  the  issuing  and 
execution  of  such  commission,  or  to  apportion  the  costs  as 
the  justice  of  the  case  might  require,  it  was  held,  that  the 
act,  being  a  remedial  act,  was  to  be  liberally  construed,  so  as 
to  authorize  such  disposition  of  the  costs  of  the  entire  pro- 
ceeding, including  a  traverse  of  the  inquisition,  etc.,  to 
final  judgment/'*  To  the  same  category  belong  statutes 
allowing  the  oricfinal  owner  of  real  estate  to  redeem  the 
same  from  tax-sales;"*  especially  when  providing  an  in- 
demnity for  the  purchaser  and  imposing  a  penalty  on  the 
delinquent ;"'  statutes  providing  indemnity  for  loss  accruing 
to  a  citizen  by  means  of  a  privilege  given  by  the  Legislatures 
to  another,"'  or  intended  to  legitimate  the  issue  of  marriage 
otherwise  void."* 

§  109.  [Upon  a  similar  principle,  it  would  seem,  it  has 
been  declared,  that,  where  the  object  of  a  statute  is  to  con- 
fer a  bounty,  ambiguities  in  its  provisions  are  to  be  con- 
strued liberally  in  favor  of  the  intended  beneficiaries."* 
And  so  in  the  case  of  statutes  ])roviding  compensation  to  pub- 
lic officers.^ 

§110.  Extension  beyond  Letter.— Sometimes  the  governing 
principle  of  the  remedial  enactment  has  been  extended  to 
cases  not  included  in  its  language,  to  prevent  a  failure  of 
justice,  and  consequently  of  the  probable  intention.  Thus,, 
the  Common  Law  Procedure  Act  of  1854,  s.  50,  which 
empowered  a  Court,  upon  the  application  of  either  party  to 

233  Quinn  V.  Fidelty  Ben.  Ass'n,  2  Pick.   (Mass.)  33,  37.      And  see 

100  Ri.  yt.  382.     See  ante,  §  101,  New  York  v.  Lord,  17  Wend.    (N. 

and  note  1<J4.  Y.)  28~)  ;  ante,  §  103. 

23' Ilasscuplug's  App.,    106  Pa.  -^*  Browcr    v.    Bowers,    1  Abb. 

St.  r)27.  Apii.  Deo.  (N.  Y.)  214.     See  Baity 

23°  Alter  V.  Shepherd,  27  La.  An.  v.  Craiifield,  91  N.  C.  293,  post,  § 

207;  Jones    v.    Collins,    16  Wis.  280. 

594.  "«  See  Ross  v.  Doe,  1  Pet.  655  ; 

23«  Corbett  v.   Nutt,    10    Wall.  Boaue  v.  Junes,  Wythe  (Va.)  62. 

464.  "»  See  U.  S.   v.   Morse,  3  Story, 

23'  Boston,  etc.,  Co.  v.   Gardner,  87. 


§110] 


SUBJECT    MATTER   AND    OBJECT. 


145 


a  cause,  supported  by  the  affidavit  of  such  party,  of  liis 
belief  that  a  material  ducument  was  in  the  possession  of  his 
opponent,  to  order  its  production,  thoui^h  it  did  not  admit 
the  affidavit  of  the  attorney  of  the  party,  even  when  the 
latter  was  abroad  {a\  was  satisfied  by  the  attorney's  affidavit,, 
where  tlie  party  was  a  corporation,  and  consequently  inca- 
pable of  making  an  affidavit,  or,  perhaps,  of  forming  a 
belief  {IS).  The  governing  principle  was  that  all  suitors, 
should  have  power  of  getting  discovery  (a)  ;  and  as  a  corpo- 
ration could  make  no  affidavit,  or  could  make  one  only  by 
theii-  attorney,  the  affidavit  of  the  latter  was  considered  a 
substantial  compliance  with  the  Act.  [A  statute  providing 
a  remedy  on  official  bonds  "  not  in  the  penalty  payable  and 
conditioned  as  prescribed  by  law,"  was  held  applicable  in 
the  case  of  an  official  bond  conditioned  as  prescribed  by  law, 
but  not  executed,  approved  or  filed  within  the  time  pre- 
scribed."" And  where  an  act  provided  that  the  county  in 
which  an  indictment  was  found  should  pay  the  costs  "  in 
all  cases  where  the  defendant  is  sentenced  to  imprisonment 
in  the  county  jail,  or  to  pay  a  fine,  and  is  unable  to  pay 
them,"  it  was  held,  in  a  case  disposed  of  by  an  agreement 
between  the  prosecuting  attorney  and  the  defendant,  that 
the  prosecution  should  be  dismissed  at  the  hitter's  costs,  that, 
upon  his  inability  to  pay  the  costs,  the  county  was  liable  to 
pay  them,  including  the  expenses  of  execution  for  the  same 
issued  against  the  defendant.'"      But  this  principle  of  con- 


{n)  Christoplierson  v.  Lotinga,  15 
C.  IJ.  N.  S.  809  ;  Hcrsclitioid  v. 
Clarke,  11  Ex.  712,  25  L.  J.  Ex. 
113. 

(6)  Kingsford  V.  G.  W.  II.  Co.. 
16  C.  B.  N.  S.  701,  33  L.  J.  C.  P, 
307. 

{a)  Per  Eric,  C.  J.,  Id.  [On  tho 
prnciple  that  the  chief  object  of 
an  act  was  to  dispense  with  the 
services  of  an  allorney.  it  was  held, 
that,  under  authority  conferred  by 
tbe  act  to  enter  judgment  upon  an 
instrument  wliieh  confessed  judg- 
ment or  contained  a  warrant  for 
an  attorney  at  law  or  other  jierson 
to  confes.s  judgment,  the  protho- 
notary  might  enter  judgment  upon 
an  instrument  whicli  empowered 
"any  attorney  or  prolhonotury " 
10 


to  do  so :  Cooper  v.  Shaver,  101 
Pa.  St.  547.] 

^'^i  Sprowl  V.  Lawrence,  33  Ala. 
674. 

s-ia  State  v.  Buchanan  Co.  Ct.,  41 
Mo.  254  ;  the  agreement  being- 
deemed  to  have  the  same  effect,  so 
far  as  the  costs  were  concerned,  as 
a  conviction  and  sentence.  Simi- 
larly it  was  held,  in  Slate  v.  Man- 
ning, 14  Tex.  402,  that  a  statute 
giving  an  appeal  when  a  judgment 
sliall  be  given  for  tlie  defeutlant, 
on  a  motion  to  quash  indictment, 
gave  an  appeal,  where  the  indict- 
ment was  al)ated  by  pica,  tlie  legal 
effect  being  the  same  in  both  cases. 
It  will  beobservedlhat  the  construc- 
tion illustrated  by  tlic  above  decis- 
ions is  close  upon  thcline  of  what  is. 


146  SUBJECT   MATTER  AND  OBJECT.  [§  111 

stnictioii  wherebj  the  operation  of  a  statute  may  sometimes 
be  judicially  extended  beyond  its  words,  does  not  apply, 
even  in  the  remedial  statutes,  where  the  words  are  too  ex- 
plicit to  admit  of  belief  that  such  extension  was  intended.''" 
Consequently  an  act  in  Connecticut  validating  all  '"deeds  .  . 
of  real  estate  in  the  state.  .  .  executed  and  acknowledged 
in  any  other  state.  .  .  in  conformity  with  the  laws  of  such 
state  .  .  relative  to  the  conveyance  of  lands  therein  situ- 
ated "  was  held  not  to  validate  a  deed  executed  in  New  York 
conveying  lands  in  Connecticut,  acknowledged  in  Xew  York 
before  a  Connecticut  commissioner,  but  delicient  under  the 
laws  of  Connecticut  by  being  attested  by  onl}'  one  witness, — 
such  commissioner  having  no  authority  under  the  laws  of 
New  York  to  take  acknowledgments  of  lands  there  situa- 
ted.^"] 

§  111.  The  beneficial  spirit  of  construction  is  also  well 
illustrated  by  cases  where  there  is  so  far  a  conflict  between 
the  general  enactment  and  some  of  its  subsidiary  provisions, 
that  the  former  would  be  limited  in  the  scope  of  its  opera- 
tion if  the  latter  were  not  restricted.  An  Act  which,  after 
authorizing  the  imposition  of  a  local  rate  on  all  occupiers  of 
land  in  a  parish,  gives  a  dissatisfied  ratepayer  an  appeal,  but 
at  the  same  time  requires  the  appellant  to  enter  into  recog- 
nizances to  prosecute  the  appeal,  presents  such  a  conflict. 
Either  it  excludes  corporations  from  the  right  of  appeal, 
because  a  corporation  is  incapable  of  entering  into  recogni- 
zances ;  or  it  extends  the  right  to  them,  without  compliance 

tcclinically  known  as  "  equitable  "  phrase    "equitable"   construction 

construction.      Tljere   is   probahl}-  Las  had,  if  it  does  not  now  have,  a 

no  dilference  between  the  "cquita-  distinct  and  peculiar  meaning,  and 

ble "const ruction  and  the  "liberal  "  is   still  sometimes  used  by  judges 

construction,   as  these  terms  are,  to     indicate     something     a     trilie 

in    modern   decisidns,    ])raclic;dly  beyond     "  liberal  "     construction, 

applied.     Indeed,  they  are  so  otten  It  is,   therefore,  deemed  advisable 

used   as   interchangeable,    and    to  to  retain  llie  title  as  a  separate  one, 

express  the  same  idea,  that,  where  and  to  leave  it  where  it  would,  in 

they  occur,  it  is  necessary  to  ascer-  strictness,  belong,  under  the  bead 

tain  whether  they  are  used   in  the  of  Exceptional  Construction:     See 

technical  sense  or  not.     It  will   be  l)ost,  i;^  320,  scq.,   and  to  refer  to 

seen   hereafter   that   most   of    the  it  the  cases  of  liberal  const ru<;t ion 

modern    instances  of  "equitable"  i)urporting  to  be  decided  under  the 

construction  are  really  nothing  but  doctrine  of  equitable  coustrnclion. 
"  lil)eral  "       construcliuns,       and  '^"'"  larrell    Foundry  v.   Dart,  26 

might,  with  propriety,  be,  cited  in  Conn.  376. 
this  connection.     Nevertheless,  the         *'^^  Ibid. 


§  112]  SUBJECT  MATTER  AND  OBJECT.  147 

with  that  special  exigency.  And  the  latter  would  beunqnes- 
tionably  the  beneficial  way  of  interpreting  the  Statute.  The 
general  and  paramount  object  of  the  Act  would  receive  full 
effect  by  giving  to  corporate  bodies  the  same  right  of  appeal 
against  the  burthen  imposed  on  them  ;  and  the  subsidiary 
provision  would  be  understood  as  applicable  only  to  these 
who  were  capable  of  entering  into  recognizances  (a), — 
[analogously,  as  to  the  former,  with  the  principle  of  testa- 
mentary interpretation,  that,  the  general  intent  of  the  testa- 
tor being  ascertained,  particular  expressions  that  would 
stand  in  its  way  are  to  be  construed  in  subordination  to  it  or 
disregarded.''"] 

The  Mortmain  Act,  which  prohibits  the  disposition  of 
lands  to  a  charity  by  other  means  than  by  a  deed  executed 
a  year  before  the  donor's  death,  was  open  to  the  construc- 
tion that  it  applied  only  to  lands  which  passed  by  deed,  and 
therefore  not  to  lands  of  copyhold  tenure  (Jj).  But  as  the 
object  of  the  Statute  was,  manifestly,  to  include  all  lands  of 
whatever  tenure  in  its  prohibition,  the  only  consequence  that 
would  have  followed,  if  it  had  been  thought  impossible  that 
the  mode  of  eonvej'ance  provided  by  the  Statute  should 
operate  to  transfer  copyholds,  would  have  been  that  copy- 
holds would  have  fallen  within  the  general  prohibition  abso- 
lutely, and  would  have  been  incapable  of  passing  to  a  char- 
ity by  any  mode  of  conveyance  (c). 

§  112.  Extension  to  New  Things. — Except  in  some  few  cases 
where  a  statute  has  fallen  under  the  principle  of  excessively 
strict  construction  the  language  of  a  statute  is  generally 
extended  to  new  things  which  were  not  known  and  could 
not  have  been  contemplated  by  the  legislature  when  it  was 
passed.  This  occurs,  when  the  Act  deals  with  a  genus,  and 
the  thing  which  afterwards  comes  into  existence  is  a  species 
of  it  {cl).  Thus,  the  provision  of  Magna  Charta  which 
exempts  lords  from  the  liability  of  having  their  carts  taken 
for  carriage  was  held  to  extend   to  degrees  of  nobility  not 

(a)  Coitis  V.  Kent  Waterworks,  (f)  Per  Lord  Tenterden  in  Doe  v. 
7  B.  »&  0.  314.     [S.  P.,  AVilliams  v.     Watcrton,  3  B.  &  A.  151. 
McDonal,  4Cb!ind.  OVis.)65.]                (d)  Per  Bovill,  C.  J.,  in   R.    v. 

2«  See  Mussolman's  Est.,  5  Watts  Smith,  L.  R.  1  C.  C.  170  ;  per  Holt, 

(Pa.)  9  ;  3  J;irm.,  Wills,  282.  C.  J.,  in  Lane  v.  Cotton,  13  Mod. 

(b)  Comp.   Smith  v.  Adams,  sup.  485. 
§30. 


148  SUBJECT  MATTER  AND  OBJECl'.  [§  112' 

laiowii  wlien  it  was  made,  as  dukes,  marquises,  and  vis- 
counts {a).  The  17  Geo.  2  (a.  d.  1744),  which  gave  parisli- 
iouers  the  riglit  of  iiisi>ccting  the  accounts  of  churchward- 
ens and  overseers  under  the  poorhnv  of  Elizabeth,  was  held 
to  extend  to  those  of  guardians,  officers  who  were  created 
by  Gilbert's  Act  (22  Geo.  3),  passed  in  1783  {b).  The  13 
Eliz.  c.  5,  which  made  void,  as  against  creditors,  transfers 
of  lands,  goods  and  chattels,  didnot  originally  apply  to  copy- 
holds or  choses  in  action,  as  these  were  not  seizable  in  exe- 
cution (c) ;  but  when  they  were  made  subject  to  be  so  taken 
(1  &  2  Vict.  c.  110),  they  fell  within  the  operation  of  the 
Act  (d).  The  Act  of  Geo.  2,  which  protects  copyright  in 
engravings  by  a  penalty  for  piratically  engraving,  etching, 
or  otherwise,  or  "in  any  other  manner "  copying  them, 
extends  to  copies  taken  by  the  recent  invention  of  photo- 
graphy ((?).  [A  statute  authorizing  counties  to  take  stock  in 
railroads  is  applicable  to  stock  of  railroads  organized  under 
a  subsequent  statute  ;""  and  the  operation  of  a  law  for  regu- 
lating "  all  existing  railroad  corporations,"  extends  to  rail- 
roads incorporated  after,  as  well  to  those  incorporated  before 
its  passage,  unless  excepted  from  its  provisions  by  their 
charters.*"  So  a  provision  in  a  statute  in  favor  of  an  alien 
''who  shall  have  resided  within  the  state  two  years,"  applies 
to  future  and  past  residence  alike."*  And  under  an  act  pro- 
viding that  the  expenses  of  the  borough  and  township  elec- 
tions, in  a  certain  county,  "held  in  March  annually,"  should 
be  paid  by  the  borough  and  townships  respectively,  they 
remained  liable  for  the  expenses  of  such  elections,  notwith- 
standing a  subsequent  change,  by  statute,  in  the  date  of  the 

(a)  2  Inst.  35.  v.    Asliford,  L.  R.    2   C.    P.   410  ; 

(6)17  Geo.  2,  c.  38;  22  Geo.  3,  Atly..Geiil.  v.  Lockwood,  9  M.   & 

c.  83  ;  R.  V.  Great  Faningdon,  9  W.  378  ;  Barber  v.  Tilson,  3  31.  & 

B.  &  C.  541  ;  Bennett  v.  Edwards,  G.    429.     See  other  instances,   Ee 

7  B.  &  C.  580  ;  6  Biug.  230.  Taylor,  10  Sim.  291  ;  Exp.  Arrow- 

(c)  Sims  V.  Thomas,  12  A.  &  E.  sniilh,  8  Cb.  D.  96  ;  and  cases  cited 

530.  infra,  chap.  xii. 

(r?)  Xorcutt  V.  Dodd,  Cr.  &  Ph.  -"^  Slebbins  v.    Pueblo    Co.,     3 

100  ;  Barrack  v.  McCulloch.  26  L.  IMcCrary,  196. 

J.  Ch.  105,  3  K.  &  J.  110  ;  R.  v.  '*^  lndianapoli.<5,  etc.,  R.  R.  Co. 

Smith,    L.    R.    1   C.    C.    270,   per  v.  Black  man,  03  111.  117. 

Bovill,  C.  J.  "*  Beard  v.  Rowan,  1  McLean, 

(e)  Gambart  v.  Ball,  14  C  B.  N.  135. 
S.  30G  ;  32  L.  J.  C  P.  166  ;  Graves 


•R  112]  SDBJKCT  MATTEK  AND  OBJECT.  14:9 

same  ;  nor  did  the  conversion  of  a  borough  into  a  city  affect 
its  liability  under  the  act  ;'■"•  just  as  the  Massachusetts  act  of 
1817,  ch.  50,  providing  that  prosecutions  under  the  bye- 
laws  of  Boston  might  be  in  the  name  of  thecon)nionwealth, 
remained  unchanged,  in  that  particular,  by  the  act  which 
incorporated  the  town  of  Boston  as  a  city.''"  Thus  again, 
a  provision  of  an  act  giving  justices  of  the  peace  civil 
jurisdiction  in  cases  involving  not  more  than  $100,  made 
the  judgment  of  the  court  of  common  upon  certiorari  to 
the  judgment  of  such  justices  final,  and  forbade  the  issuing 
of  a  writ  of  error  to  the  same  by  the  Supreme  Court ;  and 
it  was  held  that  this  provision  applied  to  certioraris  in  suits 
under  a  later  act  increasing  the  civil  jurisdiction  of  justices 
to  $300.'"  Similarly,  where  a  corporation  originally  incor- 
porated as  a  road  and  bridge  company,  was  by  a  subse- 
quent statute  permitted  to  form  itself  into  two  companies, 
one  a  turnpike,  the  other  a  bridge  company,  it  was  held  that 
the  penalties  imposed  by  the  original  act  upon  the  officers  of 
the  corporation  created  by  it  extended  to  the  officers  of  the 
new  turnpike  company.''"  So,  an  act  dividing  a  county, 
and  creating,  out  of  a  portion  of  the  old  county,  a  new  one, 
with  a  new  name,  was  held  not  to  repeal,  as  to  the  latter  the 
special  laws  in  force  in  the  whole  territory  covered  by  the 
original  county,  but  the  same  were  held  to  extend  to  and 
remain  in  force  in  the  new  county.'" 

249  Crawford   Co.    v.    Meadville,  Y.)  203.      The   act  allowins:    the 

101  Pa.  St.  573.  division  extended  the  penalties  of 

260  Com'th  V.  Worcester,  8  Pick,  the  old  act  to  the  officers  of  the 

(Mass.)  4G2.     Comp.  Smith  v.  Peo-  bridge  company,  a  circumstance 

pie,  47  N.  Y.  330,  supra,  §  43,  note  which  was  referred  to  by  the  court 

{a),  p.  54.  as  aiding  it  in  arriving  at  the  con- 

■•''s'  Pa.,  etc.,  Co.    V.    Stoughton,  struction     stated.      It    is    to    be 

106  Pa.  St.  458.     In  New  York,  an  observed,    that,    in    both    in    this 

act  passed  in  1876  gave  to  cleaning  decision  and  that  of  Crawford  Co. 

women  at  the  State  Hall  the  same  v.  Jleadville,  supra,  it  was  dech^red 

per  diem  compensation  as  was  paid  by  tlio  courts,  as  a  ground  for  their 

to  cleaning  women  at  the  Capitol,  decision,  that  the  later  acts  were 

then  $2.      After  the  Capitol  then  not  intended  to  change  the  exist- 

uscd  had  been  abandoned  for  the  ing    law    beyond    the    immediate 

new  Capitol,  it  was  held  they  were  purposes    of    the  enactment:  see 

still  entitled  to  thai  pay,  no  change  next  chapter, 

in    the    pay    of    cleaning  women  -^^  Lackawanna  Co.  v.   Stevens, 

employed  in  the  new  Capitol  having  105  Pa.  St.  465;  and  see  Parsons 

been  shown  :  Pool  v.  State  (N.  Y.)  v.    Winslow,   1   Grant  (Pa.)    160. 

10  East.  liep.  365.  In   Lumpkin   v.  Muucey,  66  Tex. 

262  Kane  v.  People,  8  Wend.  (N-  311,  it  is  said  that  an  act  creating 


150 


SLBJI^CT    MA'n'KK   AND  OBJECT, 


[§112 


[A  statute  limiting  the  time  or  place  witliiii  wliicli  or 
where  a  designated  class  of  offences  may  be  prosecuted  or 
tried,  applies  to  offences  of  the  same  class  created  and  pun- 
ished l>y  subsequent  enactments.^^*] 


new  counties  does  no  more  than 
provide  for  their  oriranization,  and 
until  the  new  county  is  actual l3\ 
organized  or  attacheil  to  some  otlier 
count}'  or  district,  its  territory 
remains  subject  to  the  old  juris- 
di'^;tioii.  But,  tiie  New  Jersey  act 
of  21  j\Iarch,  1S81,  dividing  the  Sth 
AsscMul)ly  district ,  and,  with  other 
territory,  making  two  districts, 
one  of  which,  however,  was  called 
the  Sth,  was,  for  obvious  reasons, 
held  to  repeal  by  implication    the 


special  provision  of  the  act  of  23 
Maicli,  1875,  requiring  one  of  the 
two  freeholders  from  the  Sth  dis- 
trict to  be  from  the  western,  and 
the  other  from  the  eastern  j)arL 
thereof  :  Mulligan  v.  Cavanagh, 
40  N.  J.  L.  45. 

■''*  Bish.,  VVr.  L.,  §  126,  citing  the 
following  American  cases :  John- 
son V.  U.  S.  3  McLean,  S9 ;  U. 
S.  V.  Ballard,  Id.  469  ;  Ottawa  v. 
La  Salle,  13  111.  339. 


g  113]  SOOrji  AND  I'UKl'OSE   OF    ACT.  151 


CHAPTER  Y. 

Presumptions  Arising  from  Scope  and  Specific  Purpose 
OF  Act,  and  as  to  Evasion  and  Abuse  of  Power. 

§  113.  Presumption  aijainst  Needless  Change  of  Law. 

§  114.  Application  of  the  Rule. 

§  127.  Change  of  Common  Law. 

^  129.  Intent  as  an  Element  of  Crime. 

§  130.  Incapacity,  etc. 

§  131.  Acts  done  in  Assertion  of  Right. 

§  132.  Ignorance  as  a  Defense. 

§  135.  Liability  of  Master  for  Servant's  Act. 

§  186.   Mens  Rea  and  Guilty  Mind. 

§  137.  Restriction  of  General  Terms  to  Particular  Parties. 

§  138.  Presumption  Against  Permitting  Evasion. 

§  144.  Limits  of  the  Rule. 

§  146.  Presumption  Against  Permitting  Abuse  of  Power. 

§  147.  Judicial  Discretion. 

§  148.  Limits  of  Discretion  Conferred  on  Officers. 

§  149.  Discretion  to  be  Exercised  in  Individual  Cases. 

§  113.  Presumption  against  Needless  Change  of  Law. — Before 
adopting  any  proposed  construction  of  a  passage  susceptible 
of  more  than  one  meaning,  it  is  important  to  consider  the 
effects  or  consequences  whicli  would  result  from  it  (a),  for 
the}'  often  point  out  the  genuine  meaning  of  the  words  (5). 
There  are  certain  objects  which  the  Legislature  is  presumed 
not  to  intend  ;  and  a  construction  which  would  lead  to  any 
of  them  is  therefore  to  be  avoided.  It  is  found  sometitnes 
necessary  to  depart,  not  only  from  the  primary  and  literal 
meaning  of  the  words,  but  also  from  the  rules  of  grammati- 
cal construction,  when  it  is  improbable  that  they  express  the 
real  intention  of  the  Legislature  ;  it  being  more  reasonable 
to  hold  that   the  Legislature   expressed    its   intention   in   a 

(a)  Grot,  de  B.  &  P.  b.  2,  c.  16,  95  N.  C.  434.]  See  ante,  §  4,  as  to 
s.  4  ;  XJ-  S.  v.  Fisher,  2  Cranch,  when  consequences  may  be  con- 
390,  pe)'  Cur.    [Hiues  v.  R.  R.  Co.,      sidered. 

(b)  Puff.  L.  N.  b.  5.  c.  12.  s.  8. 


152  SCOPIC    AND    I'L'KPOriK  OF  ACT.  [§  Hi 

slovenly  manner,  than  that  it  intended  something  whieh  it  is 
presumed  not  to  intend. 

One  of  these  presumptions  is  tliat  the  Legislature  does  not 
intend  to  make  any  alteration  in  the  law  beyond  what  it 
explicity  deelares  (a),  either  in  ex|)ress  terms  oi'  by  unmis- 
takable implication  ;  or,  in  other  words,  beyond  the  imme- 
diate scope  and  object  of  the  statute  (a).  In  all  general 
nuitters  beyond,  the  law  remains  undisturbed.  It  is  in  the 
last  degree  im.probable  that  the  Legislature  would  overthrow 
fundamental  principles,  infringe  rights,  or  depart  from  the 
general  system  of  law,  without  expressing  its  intention 
with  irresistible  clearness  (J) ;  and  to  give  any  such  effect  to 
general  words,  simply  because,  in  their  widest  and  perhaps 
natural  sense,  they  have  that  meaning,  would  be  to  give 
them  a  meaning  in  which  thej'  were  not  really  used.  It 
is,  therefore,  an  established  rule  of  construction  that  general 
words  and  phrases,  however  wide  and  comprehensive  in  their 
literal  sense,  must  be  construed  as  strictly  limited  to  the 
immediate  objects  of  the  Act,  and  as  not  altering  the  general 
principles  of  the  law  (c)  ;  [i.  e.,  they  are  to  be  construed  as 
near  the  use  and  reason  of  the  prior  law  as  may  be,  without 
violation  of  their  obvious  meaning,'] 

§  114.  Arplication  of  the  Rule Thus,   a      Statute    which 

authorized  "any"  or  "the  nearest "  justice  of  the  peace 
to  try  certain  cases,  would  not  authorize  a  justice  to  try 
any  such  cases  out  of  the  territorial  limits  of  his  own 
jurisdiction  (d);  or  in  which  he  had  a  disqualifying  interest 
(<?);  or  whieh  he  was  incapacitated  by  any  other  general 
principle   of    law  from    hearing  (j^);  or    to    hear  them   by 

(a)  Per  Trevor,  J.,  in  Arthur  v.  '  Caflbury  v.  Duvul,  10  Pa.  Si. 
Bokiniham,  11  ]\Io(l.  150;  see  also  2G5,  270;  Ihnisea  v.  Kavigation 
Harbert's  Case,  3  Kcp.  i;]b.  [Lee  Co.,  32  Id.  153,  157;  Com'tli  v. 
V.  Formaii,  3  Mete.  (Ky.)  114;  Sbopp,  1  Woodw.  (Pa.)  123,129. 
McAfee  v.  R.  R.  Co.,  30  Miss.  GGI);  And  .see  1  Kent,  Comm.  404. 
Paramore  v.  Tavlor,  11  Gralt.  (Va.)  ((/)  1  Hawk.  P.  C,  c.  05,  s.  45  ; 
220;Sebcppv.  City  of  Reading,  2  Be  Peerless,  1  Q.  B.  153;  R.  v. 
Wrodw.     (Pa.)     400;    Kerlin    v.  Fylingdales,  7  B- &  C.  438. 

Bi.ll,  1  Dall.  (Pa.)  175.]  (e)  R.   v.    Cbellenham,    1   Q.   B. 

(b)  2  Crancb.  390.  467. 

(c)  Per  Sir  J.  Romiliy  in  ]\[iuet  (/)  Bonbam's  Case,  8  Rep.  118a; 
V.  Ijcnian,  20  Beav.  278,  24  L.  J.  Great  Cbarte  v.  Keuningtou,  2 
Cb.  517;  Wear  Coiinni.ssioDors  v.  Stra.  1173;  R.  v.  Sainsbury,  4  T. 
Adamson,    1   Q.    B.     D.    .546,  per  R.  456. 

Mellisb,  L.  J.,  2  Aj^p.  783. 


g  114]  SCOPE    AND    PURPOSE  OF  ACT.  153 

any  other  course  of   proceed! ni>-    tliaii   that   established  by 
law    {a).     So,    the    Debtors   Act,    18G9,    which    empowers 
"  any  (Inferior)  Court "  to  connnit  fur  default  of  payment 
of  a  debt  under  fifty  pounds,  in  pursuance  of  an  order  or 
judgment  of  "  that  or  any  other  competent  Court,"  did  not 
authorize  such  a  Court   to  commit,  unless  the  debtor   was 
subject  to  its  general  jurisdiction   by  residence  or  business 
(5).     An  Act  which  authorized  a  distress  would  not  author- 
ize a  seizure  of  goods  in  custodia  legis  (c).     [And  foreign 
attachments,  under  statutes  authorizing  such,  being  held  to 
lie  only  for  the  recovery  of  debts  or  damages  arising  ex  con- 
tractu,^ an  act  providing  that,  "  where  two  or  more  persons 
shall  be  jointly  but  not  severally  liable  to  the  suit  of  another, 
if  one  or  more  of  sucli  persons  shall  be  liable  to  attachment 
as  aforesaid,  and   another,  or  others  shall  not  be  liable   to 
such  process,"  an  attachment  may  be  issued  against  the  for- 
mer and  a  summons  against  the  latter,  was  held  confined  to 
its  object  of  giving  the  action  when  one  of  the  joint  debtors 
resided  out  of  the  state  and  had  property  within  it,  and  not 
to  change  the  rule  limiting  the  remedy  by  foreign  attach- 
ment to  claims  ex  contractu,  to  the  exclusion  of  demands 
founded  in  tort/]     The  provision  in  the  Judicature  Act  of 
1873,  that  the  Court  might  grant  an  injunction  in  all  cases 
in  which  it  should  consider  it  "  just  and  convenient  "  that 
such  an  order  should  be  made,  did  not  extend  the  authority 
of  the  Court  beyond  cases  where  there  is  an  invasion  of  re- 
cognized legal  or  equitable  rights  {d).     [An  act  provided, 
that,  in   all    proceedings  in    courts   of   law   and    equity,  ia 
which  it  should  be  alleged  that  the  private  rights  of  a  party, 
etc.,  were  injured  or  invaded  by  any  corporation  claiming 
to  have  a  right  or  franchise  to  do  the  act  from  which  such 
injury    resulted,    it   should    be    the    duty  of    the   court   to 

(a)  Dalt.  c.  6.  s.  6.  Barnes  v.  Buck,    1  Lans.  (N.  Y.) 

(b)  S2  &  8;!  Vict.  c.  m  ;   Washer     268. 

V  Elliot  1  C.   l^  D.  1C9.  *  Boyer  v.  Bullard,  103  Pa.  St. 

(c)  17  &  IW  Vict.   c.   104,  s.    523  ;      555. 

The   Westinorclaud,    2    W.    Kob.  (a)  Seel.  25,   subs.  8;    Bcddow 

594  V.  Uoddow,  9  Ch.  D.  89  ;   Day  y, 

2  See  Jacoby  v.  Gogell,  5  Serg.  &  Brownri-g,  10  Ch.  D.  294;  and  per 

R     (Pa  )   450  ;    Porter    v.    Ililde-  i.ord  Ilatherlev,  in  Reuss  v.  Bos, 

brand,   14  Pa.  St.  129.      And  see  L.  11.  5  App.  193. 


151  SUOI'K  AM>  I'lIUlMSH  OK  ACT.  [§  114 

examine  and  ascertain  whether  such  corporation  in  fact 
})ossesso(l  the  right  or  franchise  thus  claimed  by  it.  It  was 
lield  that  this  act  merely  enabled  private  citizens  to  call  upon 
a  corporation  to  show,  by  its  charter,  that  it  had  the  power 
to  do  a  certain  act,  and  permitted  him  to  show,  from  the 
charter,  that  the  powers  once  possessed  by  the  corporation 
had  l)cen  lost  by  lapse  of  time,  or  other  cause  appearing 
from  the  conditions  or  limitations  of  the  charter  itself;  but 
did  not  alter  the  lawforbidding  any  but  the  Commonwealth 
t')  iiKjiui'e  into  extraneous  causes  of  forfeiture,  as,  e.  g.,  non- 
Tiser.'J  The  provisions  in  Order  55,  Rule  1,  of  the  Judicature 
Act  and  the  Regulation  of  Railways  Act,  1873,  that  the 
costs  of  and  incidental  to  proceedings  shall  be  in  the  discre- 
tion of  the  Court  was  construed  as  giving  no  wider  discretion 
than  had  always  been  exercised  by  the  Court  of  Chancery, 
and  therefore  as  not  authoi-izing  an  order  on  a  successful  de- 
fendant to  pay  a  portion  of  the  plaintiff's  costs  {a). 

An  Act  which  provided  that  a  mayor  should  not  be,  by 
reason  of  his  office,  ineligible  as  a  town  councillor  or  alder- 
man, would  not  make  him  eligil)le  when  he  acted  in  the 
judicial  capacity  of  returning  officer  at  the  election  ;  for  it 
would  not  be  a  just  construction  of  the  language  used,  or  a 
legitimate  inference  from  it,  that  the  legislature  had  intended 
to  repeal  by  a  mere  sidewind  the  princi])le  of  law  that  a  man 
cannot  be  a  judge  in  his  own  case  {b).  [Upon  the  same 
principle,  it  was  held,  that,  Under  an  act  unqualifiedly  em- 
powering justices  of  the  peace  to  take  the  separate  acknowl- 
edgment of  married  woman  of  their  free  and  voluntary  execu- 
tion of  deeds  conveying  their  property  or  interest  in  property 
of  the  husband,  a  magistrate  bound  to  make  title  himself  or 
by  a  conveyance  from  a  third  party  is  incompetent  to  receive 
the  acknowledgment  of  the  grantor's  wifc/J  So,  an  Act 
which  directed  the  election  of  officers  would  be  understood 

MVcstcrn  Pa.  R.  R.  Co.'s  Api).,  28  \j.  J.  31(5  ;  R   v.  Tewkesbury, 

10+  Pa.    St.   JiO'J.       Conip.   on    lliis  L.  R.  ;}  Q.  15.  039  ;  R.  v.  Millcdge. 

subject,  Endlich  Build'g  As.s'ns,  ^^  4  Q-    1^-   t>-  =^=W.  8.  C.  nom.   R.  v. 

504,'  513,  and  cases  thcro  ictcrred  Wovnioulh,  48  L.  J.  131). 
to.  ''  \Viilicrs  V.  IJaird,  7  Watts  (Pa.) 

(</)  Foster  V.   G.   W.    R.   Co..  51  227.      Tliat    llic    tnkiu-    of    sucli 

L.  J.  Q.  B.  233.       [Comp.   Com'lh  acknowicdguieiif.  is  a  judicial  act, 

V.  Quintcr,  2  Woodw.  (Pa.)  377. J  see,  Ibid.;  Jamison  v.  Jamison,  3 

{}))  R.  V.  Owens,  2  E.  &  E.  80,  Whart.     (Pa.)    457 ;     Louden    v. 


§115]  SCOPK  AND    PURPOSE  OF  ACT.  155 

as  authorizing  it  only  on  a  lawfnl  day,  and  not  on  a  Sunday 
(a);  and  if  it  declared  that  the  candidate  who  liad  the  major 
\ty  of  votes  should  be  deemed  elected,  it  would  be  construed 
as  not  intending  to  override  the  general  principle,  that  voters 
who  vote  for  a  person  whom  they  know  to  be  ineligible, 
throw  away  their  votes  (b). 

§  115,  In  the  same  way,  a  statute  rcqniring  a  recognizance 
would  not  be  understood  as  giving  competency  to  minors 
and  married  women  to  bind  themselves  by  such  an  instru- 
ment (c).  The  Wills  Act  of  Hen.  8,  which  empowered  "  all 
persons"  to  devise  their  lands,  did  not  legalize  a  devise  of 
land  to  a  corporation  (<'/),  nor  would  it  have  enabled  lunatics 
or  minors  to  uiahe  a  will,  even  if  the  33  &  34  lien.  8,  s.  11, 
had  not  been  passed  to  prevent  a  different  construction  {e). 
The  object  of  the  Legislature  was,  obviously,  only  to  confer 
a  new  power  of  disposition  on  persons  already  of  capacity  to 
deal  with  their  property,  not  to  relieve  from  disability  from 
disposing  or  taking  those  who  were  under  such  incapacity. 
[So,  where  an  act  gave  to  all  persons  of  full  age  and  sound 
mind  the  right  to  dispose  of  their  real  estate,  as  well  by  last 
will  and  testament  in  writing,  as  otherwise,  by  any  act  execut- 
ed in  his  or  her  life-time,  it  was  held  not  to  extend  to  nuirried 
women,  on  the  ground  that  it  was  not  the  design  of  the  Legis- 
lature to  alter  the  relation  betw^een  husband  and  wife,  or  the 
legal  effect  of  that  relation  by  mere  implication  from  huiguage 
not  expressing  any  such  intention."       Nor  does  an  act  pro- 

Blytbe.  IG  Pu.  St.  533,  540  ;  lleeter  A  pp.  C.  91  ;  In  re  Free  arammar 

V  G!asn-o\v,  79  Id.  79  ;  Sin-cr  Man.  Scliool.  12  Id.  4-44,  4")0.] 

Co.  V.  iiook,  84  Id.  443  ;  Com'lh  v.  (c)   Custodes    v.     Jinks,    Styles, 

Haines     97    Id.    338;     llomoeop.  388;   Draper  v.  (Jlenlu'ld,   Bulstr. 

Life  Ins.  Co.  v.  Marshall,  33  N.  J.  345  ;   Coleman   v.   Birmingham,  0 

Eq.    103.     And  as  to  the  principle  Q.   B.   D.  015;  SOL.  J.  93  (see  33 

that  interest  disqualifies  for  a  judi-  &  34  Viet   c.  93,  s.  14). 

cial   act,    see   Cooley,  C.  L.,  508-  (^0  38  Hen.  8,  c.  1  ;  Jesus  College 

511  Case,     Duke,    Cliarit.     Uses,    78  ; 

(a)  R.  V.  Butler,  1  W.  Bl.  649;  Branelh     v.     Havering,     Id.     83; 

R   V   Bridgewater,  Cowp.  139.  Ciirist's  Hospital  v.  Hawes,  Id.  84. 

(/>)  R.  V.   Coaks,  3  E.  &  B.  349,  («)  Beck  ford   v.    Wade,  17   \es. 

23  L   J.  133  ;  R.  v.  How,  33  L.  J.  91  ;  comp.  O'Shanassy  v.  Joachim, 

M.  C.  53  ;  Campbell  v.   Jlaunil,  5  1    App.    83  ;    and   as    to    married 

A    &  E   8G5  ;  R.  v.   St.  Matthew,  women,  bef  )re  tlie  45  &,  40  \  ict. 

33  Law  Times.  :^.  S.  558  ;  R.  v.  c.  75,  see  AVillock  v.  Noble,  L.  R. 

Wimbledon  Loc.    Board,  51  L.  J.  7  H.  L.  580  ;  Doe  v.  Bartle,  5  B.  & 

Cli.    319.*     L^o,     "  entitled."   in    a  A.  493. 

statute,  means  legally  entitled  :  Ju  "^   Osgood    v.    Breed,    13    Mass.. 

re   Coldfield   Grammar    School,    7  530  ;  ^Vilbur  v.    Crane,  13  Pick., 

*  See  Addenda. 


150 


SCOPE  AND    PDliPOSE  OF  ACT, 


[§115 


viding  that  ''  any  married  female  may  take  .  .  .  convey  and 
devise  real  or  personal  property,"  authorize  a  married  female 
infant  to  devise  real  estate/]  The  43  Eliz.  c.  2,  in  making 
the  mother  and  grandmother  of  an  illegitimate  child  liable  to 
maintain  it,  did  not  reach  them  when  under  coverture,  and 
60  in  a  state  of  inability  to  perform  that  duty  (a) ;  and  an 
Act  which  punished  "every  person''  wlio  deserted  his  or 
her  childi'cn  would  not  appl}' to  a  married  woman  whom  her 
husband  had  deserted  {h).  [Nor  is  one,  who,  in  his  otlicial 
capacity,  makes,  and  incorporates  in  his  official  report, 
sketches  an(]  the  like,  to  be  deemed  the  ''author"  of  the 
same  within  the  copy-right  laws.*]  So,  the  enactment  which 
gave  a  vote  for  the  election  of  town  councillors  to  cverj' 
"  person  "  of  full  age  who  had  occupied  a  house  for  a  certain 
time,  and  provided  that  words  importing  the  masculine  gen- 
der should  include  females  for  all  purposes  relating  to  the 
right  to  vote,  was  held,  having  regard  to  the  general  scope  of 
the  Act,  to  remove  only  that  disability  which  was  founded 
on  sex,  but  not  to  affect  that  which  was  the  result  of  marriage 
as  well  as  sex,  and  therefore  not  to  give  the  right  of  voting 
to  married  women  (c).  An  Act  which  simply  left  the  deter- 
mination of  a  matter  to  a  majority  of  vestrymen  "  present  at 


(IVIass.)  284.  It  is  said,  that,  iu 
lay  as  well  as  leiral  wi'itiiiirs,  the 
word  "  all  "  is  frequently  and  care- 
lessly used  where  its  generality  is 
to  be  restricted  by  context  and 
intention  :  Phillips  v.  Saunders,  15 
Ga.  518.  So  the  phrase  "every 
case,"  in  La.  Civ.  Code,  §  3531, 
was  held  to  mean  every  class  of 
cases  or  subject  matter  expressly 
legislated  upon  in  the  Code  : 
D'Apremout  v.  Berry,  6  La.  An. 
464. 

'  Zimmerman  v.  Sclioenfeldt,  6 
Th.  &  C.  (N.  Y.)  142  ;  3  Ilun,  G92. 

{</)  Bennett  v.  Watson,  3  M.  & 
S.  1  ;  Exp.  Bai  row,  3  Vcs.  554  ; 
Hussey's  Case.  9  Hep.  73.  [An 
act  authorizing  the  court  of  Quar- 
ter Sessions  to  order  children  to 
support  their  indigent  and  disabled 
parents,  was  held  not  to  relieve 
the  poor-district  from  the  legal 
liability  to  provide  for  such  per- 
sons not  having  a  settlement  there. 


until  they  could  bo  removed  to  the 
place  of  their  last  settlement  : 
Kelly  Tp.  v.  Union  Tp.,  5  Watts 
&  Serg.  (Pa.)  535.] 

(b)  Peters  v.  Cowie,  2  Q.  B.  D. 
131. 

*  Heine  v.  Appleton,  4  Blatchf. 
125.  IS'or  an  official  reporter  of 
judicial  decisions,  exce])t  as  to  the 
lieadnot.es  prelixed  to  bis  reports 
of  cases  :  Wheaton  v.  Peters  8  Pet. 
501,  698  ;  Little  v.  Gould,  2  IJlalchf. 
165. 

(c)  32  &  3:}  Vict.  c.  55.  s.  9 ;  R. 
V.  Ilarrald,  L.  R.  7  Q.  B.  361  ;  see 
CliorlLon  v.  Lings,  L.  R.  4  C.  P. 
374.  [See  Thicknesse,  Hush,  and 
AV.,  at  p.  19  :  "  When  the  result  is 
not  revolutionary  but  lemedial,  and 
consisient  with  another  act,  made 
the  following  .session,  the  word 
'p(!rson'  will  be  interpreted  in  its 
natural  meaning,  and  will  include 
not  only  a  single  woman,  but  a 
married  one  also."] 


§   116]  SCOPE    AND    PURPOSE    OF    ACT.  157 

the  meeting  "  would  not  affect  tlie  eonitnon  law  riglit  of  tlio 
minority  to  demand  a  poll ;  and  the  "meeling"  would  there- 
fore be  understood  as  continuing  until  the  end  of  the  poll  (a). 
A  charitable  provision  for  the  support  of  "  maimed " 
soldiers  would  not  extend  to  soldiers  who  had  been  maimed 
in  the  service  of  a  foreign  state,  or  in  punishment*  for  a 
crime  (h).  A  statute  which  enacted  that  "  every  convey- 
ance "  in  a  particular  form  should  be  "  valid,"  would  not 
receive  the  sweeping  effect,  so  foreign  to  its  object,  as  that 
of  curing  a  defect  of  title  {c).  [Nor  will  a  statute  author- 
izing a  county  to  convey  to  the  State  certain  lands  "as  the 
said  county  shall  now  hold  by  virtue  of  tax  deeds  issued 
upon  sales  for  delinquent  taxes  heretofore  made,"  validate, 
or  apply  to  land  held  by  the  county,  under  tax-deeds  void 
on  their  face  ;  and  this,  although,  in  fact,  there  were  no 
lands  to  which  the  act,  thus  construed,  could  apply.'  So  a 
statute  declaring  of  full  force  all  ordinances  of  a  city, 
etc.,  "in  operation"  at  the  date  of  its  passage,  has  no 
effect  upon  one,  which,  before  that  time,  had  been  judi- 
cially pronounced  inoperative.'"  Again  an  act  validating 
certain  sales  made  by  persons  in  a  fiduciary  capacity  in  the 
event  of  any  irregularity  or  defect  existing  in  the  appoint- 
ment or  qualification  of  such  trustee,  etc.,  cures  only  defects 
in  the  proceedings  where  the  court  had  jurisdiction  of  the 
subject  matter,  and  does  not  validate  a  sale  made  by  a  trustee, 
etc.,  vv'ho  was  irregularly  and  defectively  appointed  or 
qualified  by  a  court  that  had  no  jurisdiction  to  make  such 
an  appointment."] 

§  116.  So,  the  Tithe  Commutation  Act,  in  declaring  maps 
made  under  its  provisions,  "satisfactory  evidence"  of  the 
matters  therein  stated,  would  not  have  the  effect  of  making 
them  evidence  on  a  question  of  title  between  landowners,  a 

(a)  5  &  6  Wm.  4,  c.  7G,  s.  18  ;  R.  see    also    Whidborne    v.    Ecclcs. 

V.  How,  33  L.  J.  M.  C.  53  (Q.  B.) ;  Com.,  7  Ch.  D.  375.  47  L.  J.  129  : 

While  V.  Steel,  12  C.  13.  JSI.  S.  383,  Forbes  v.  Ecclcs.  Cum..  15  Eq.  51. 

31   L.  J.  265  ;   11.  v.  St.  Mary,  3  *  Haseltine  v.  Hewitt,  Gl    Wis. 

Nev.  &  p.  416  ;  R.  v.  D'Oyley,  13  121. 

A.  &  E.  139.  •»  Allen  v.  Savannah,  9  Ga.  286. 

(p)  Duke,  Charit.  Uses,  134.  "  Ilaldermau  v.  Young,  107  Pa.- 

(c)  Ward  v.  Scott,  3  Camp.  284;  St.  324. 


158  SCOPK    AM)    PURPOSE    OF    ACT.  [§    116 

matter  forei<^n  to  the  scope  of  tlie  Act  (a).  So,  a  ship  built 
ill  England  for  a  foreigner  would  not  be  a  "  British  ship" 
M-itiiin  the  provisions  requiring  registration  and  transfer  bj 
bill  of  sale,  even  while  still  the  ])ropertj  of  the  English 
builder  (/>).  [Nor  did  the  Kew  Jersej  statute  declaring 
every •^varrant  of  attorney  for  the  confession  of  judgment, 
included  in  any  bond,  bill,  or  other  instiMinient,  void,  prohib- 
it the  making,  in  that  state,  of  such  warrant  of  attorney  for 
nse  in  other  states.'"]  The  Bankrupt  Act,  which  makes  a 
composition  accepted  under  certain  circumstances  by  credi- 
tors binding  on  all  creditors  "  whose  nanies  are  shown  in 
the  debtor's  statement,"  with  the  proviso  that  it  "  shall  not 
affect  any  other  creditor,"  would  exclude  only  non-assenting 
creditors,  but  not  creditors  whose  names  were  not  stated  in 
the  debtor's  statement,  if,  in  fact,  they  assented;  for  it 
would  be  understood  as  not  intending  to  interfere  with  the 
general  principle  that  it  is  competent  to  a  person  to  bind 
liimself  by  such  an  assent  (c).  The  12  Car.  2,  c.  17,  which 
enacted  that  all  persons  presented  to  benefices  in  the  time 
of  the  Commonwealth,  and  who  should  conform  as  directed 
by  the  Act,  should  be  confirmed  therein,  "  notwithstanding 
aiiy  act  or  thing  whatsoever,"  was  obviously  not  intended 
to  apply  to  a  person  who  had  been  sinioniacally  ])resented 
(d).  It  is  evident  that  a  literal  construction  would,  in  these 
cases,  have  carried  the  operation  of  the  Act  far  beyond  the 
intention. 

So,  the  sixth  section  of  the  Habeas  Corpus  Act  which,  for 
the  prevention  of  unjust  vexation  by  reiterated  commitments 
for  the  same  offense,  enacts  that  no  person  who  has  been 
discharged  on  habeas  corpus  shall  be  imprisoned  again  for 
"  the  same  offense,"  except  by  the  Court  wherein  he  is 
bound  by  recognizances  to  appear,  or  other  Court  having 
jurisdiction  in  the  cause,  would  not  extend  to  a  case  where 
the  discharge  was  made  on  the  ground  that  the  commitment 

(a)  G   &  7  Wm.  4,  c.  71,  s.  64  ;  L.  555. 

Wilbcrforce  v.  lleaificld,  5  Ch.  D.  (c)  82  &  33  Vict.  c.  71,  s.  126  ; 

709.  Campbell  v.  Im  Thuni,  1  C.  P.  D. 

(i)  Union    Bank   v.  Lcnanton,  3  207. 

C.  P.  D.  243.  (d)    Cruwlcy    v.    Philips,     Sid. 

''■'  Ilendrickson  v.  Fries,  45  N.  J.  232. 


§  117]  SCOPE    AND    PL'UI'OSE    OF    ACT.  159 

liad  been  made  without  jurisdiction,  tlioiigh  the  offence  for 
which  he  was  arrested  on  the  second  occasion  was  tlie 
same  ;  for  this  was  obviously  beyond  the  object  of  the 
Act  (a). 

The  statutory  provision  for  the  restoration  of  stolen  goods 
to  the  owner,  on  conviction  of  the  offender,  was  construed 
as  applying  only  to  cases  where  the  property  in  the  goods 
continued  in  him,  but  not  as  authorizing  a  restoration  when 
the  property  had  vested  in  an  innocent  purchaser  (J).  [And 
the  confirmation  of  titles  declared  by  the  Act  of  Congress  of 
22d  July,  186G,  was  held  not  to  apply  to  lands  as  to  which 
an  adverse  pre-emption,  homestead,  or  other  right  had  been 
acquired  at  the  date  of  the  passage  of  the  act,  by  any  settler 
under  the  United  States  laws."] 

§  117.  So,  it  was  held  that  the  provision  of  the  Statute  of 
Limitations,  3  &  4:  WilL  4,  c.  27,  s.  2G,  which  deprives  the 
owner  of  lands  of  the  right  of  suing  in  equity  for  their 
recovery,  on  the  ground  of  fraud,  from  a  purchaser  who  did 
not  know  or  have  reason  to  believe  that  any  such  fraud  had 
been  committed,  was  to  be  construed  subject  to  the  presump- 
tion that  the  Legislature  had  not  intended,  by  its  general 
language,  to  subvert  the  established  principles  of  equity  on 
the  subject  of  constructive  notice  ;  and  was  therefore  read 
as  meaning  that  the  purchaser  did  not  know  or  have  reason 
to  believe,  either  b}^  himself,  or  by  some  agent  whose  knowl- 
edge or  reason  to  believe  is,  in  equity,  equivalent  to  his 
own  (c).  [And  similarly,  a  statutory  provision  that  every 
deed  and  conveyance  which  shall  not  be  recorded  within  a 
certain  period  after  execution,  shall  be  deemed  fraudulent 
and  void  as  against  any  subsequent  purchaser  or  mortgagee 
for  valuable  consideration,  protects  only  bona  fide  purchas- 
ers and  mortgagees  for  a  valuable  consideration,  without 
notice  ;'^  and,  moreover,  the  purchaser  protected  is  oidy  tiie 
purchaser  of  the  same  title,  the  purchaser  of  an  adverse  title 

(a)  31  Car.   2,  c.   2  ;  Atty.Genl.  (c)   Vane  v.  Vaue,  L.  K.   8  Ch 

V.  Kwok  Ah  Sing,  L.  R.  5  P.   C.  883. 
179.  '^  Union  Canal  Co.    v.  Young,  1 

(6)  24  &  25   Vict.  c.  96,  s.  100  ;  Wliurt.  (hi.)  410.  432  :  Hoffman  v. 

Moyce  v.  Ncwington,  1  Q.  B.  D.  atroheckor,  7    Walts  (Pa.)  8G,  90; 

S2.  Jaques  v.  Weeks,  Id.  2G1. 

i»  Keeran  v.  Griffith,  34  Cal.  580. 


ICO 


scorK  AND  ruKPosr:  of  act.  [§  118 


not  bein^i?  within  the  scope  of  the  act.'"  And  an  act  pro- 
viding that  a  bona  fide  assignee  of  an  usnrions  contract  may 
recover  ao-ainst  the  usurer  the  amount  of  the  consideration 
paid  by  him  for  the  same,  less  the  amount  of  the  principal, 
was  held  not  to  apply  to  an  indorser  of  a  pi'omissory  note 
with  notice  that  it  was  tainted  with  usury."] 

§  118.  The  provision  of  the  Factors  Act,  wliich  enacts 
that  "any  agent  intrusted  with  the  possession  of  goods" 
shall  be  deemed  their  owner,  so  far  as  to  give  validity  to  a 
pledge  of  them,  is  confined  by  the  general  scope  and  object 
of  the  enactment  to  mercantile  agents  and  transactions  ;  and 
would  therefore  not  give  validity  to  a  pledge  of  household 
furniture,  not  in  the  way  of  trade,  made  by  an  agent  to 
whose  possession  it  had  been  entrusted  {a).  [So,  an  act  which 
declared,  that,  when  any  mariners  or  others  are  gone  or 
thereafter  shall  go  to  sea,  leaving  their  wives  at  shop-keeping, 
or  to  work  for  their  livelihood,  such  wives  shall  be  deemed 
and  declared  feme  sole  traders,  with  capacity  to  sue  and  be 
sued,  was  held  to  make  *  woman  so  entitled  and  liable  only 
when  engaged  in  trade  or  business,  and  a  subsequent  statute 
of  much  wider  range,  but  declaring  that  married  women 
embraced  in  its  provisions  should  have  all  the  rights  and 
privileges  secured  by  the  former  and  be  subject  r.s  therein 
provided,  was  held  similarly  restricted.*']  An  act  which 
empowered  the  directors  of  an  incorporated  company  to  make 
contracts  and  bargains  with  workmen,  agents  and  under- 
takers, would  be  construed  as  conferring  on  them  authority 
to  bind  the  company  without  consulting  their  shareholders, 
by  such  transactions  ;  but  not  as  so  altering  the  general  law 
as  to  dispense  with  those  formalities  by  which  alone  a  cor- 

»  Henry  v.  Morgan,  2Binn.  (Pa.)  N.  W.  Bank,  L.  R.    10  C.  P.  354, 

497  ;  Keller  v.  Nutz,  5  Serg.  &  K.  o73.    See  further  limitations  of  the 

(Pa.)  240  ;  Sailor  v.     Hertzog,    4  meaning  of  the  .';amc  enactment,  in 

Whart.     (Pa.)    205  ;    Lightner    v.  Fnentes  v.  Montes,  L.    11.   3  C.  P. 

Moonev.  10  ^Valts  (Pa).  80  ;  Harper  203,  4  C.  P.  93  ;  Johnson  v.  Credit 

V.  15ank,  7  Watts.  &  S.  (Pa.)  200.  Lyonnais,  47  L.  J.  Q.  B.  241  ;  3  C. 

1^  Jiroxrn   v.    Wilcox,    15   Iowa,  P.  D.  32  (before  40  &  41  Vict,  c. 

414.  30.)  ^     ^ 

(«)  5  &  6  Vict.    c.   39  ;  Wood  v.  '»  Cleaver  v,  Sheetz,  70  Pa.  St. 

Rowel iffc,  0  Hare,  191  ;  Balnea  v.  490. 
Swainson,  1  B.  &  S.  »31  ;   Coles  v. 


§   118]  SCOPE    AND    PCRPOSE    OF    ACT.  101 

poration  can  bind  itself  to  contracts,  tliat  is,  1)}'  writin;^; 
undcM"  the  corporate  seal  (a). 

Tlie  ]»rovision  in  the  Friendly  Societies  Act,  wliicli 
requires  a  reference  to  arbitration  of  "  evei-y  matter  in  dis- 
pute "  between  a  society  and  any  of  its  mend>ers  would,  on 
the  same  principle,  be  confined  to  disputes  with  meml^ers  as- 
members  ;  and  a  breach  of  covenant  i)y  a  mend)er  to  repay 
a  sum  borrowed  from  his  society  was  therefore  held  not  to 
fall  within  the  arbitration  clause,  as  the  dispute  would  be 
with  the  member  as  debtor,  not  as  member  (h).  [Converse- 
ly, the  law  organizing  the  board  of  Florida  Commissioners, 
to  investigate  the  claims  of  citizens  against  the  Spanish 
government,  was  held  not  to  authorize  them  to  investigate 
the  rights  of  claimants  as  among  themselves  ;  so  that,  where 
one  of  several  entitled  to  indemnity  obtained  an  award  in  his 
favor,  he  was  treated  as  a  trustee  for  those  interested,'^  And 
similarly,  the  Orphans'  Court,  in  Pennsylvania,  though 
charged  with  making  distribution  of  decedent's  estates  to  the 
persons  entitled  thereto,  has  no  jurisdiction  of  a  claim  by  an 
administrator  in  his  own  right  against  the  distributees  ;'"'  nor 
vice  versa  ;"'  nor  to  determine  who  is  entitled  to  the  benefit 
of  a  judgment  against  an  intestate.''^] 

On  similar  gi-ounds  a  conveyance  of  property,  knowingly 
(c)  made  solely  for  the  purpose  of  giving  a  vote  contrary  to 
the  7  ifc  8  W.  3,  c.  25,  s.  7,  which  declares  such  conveyances 
*'  void  and  of  none  effect,"  is  void  so  far  as  to  prevent  the 
right  of  voting  being  acquired,  which  is  the  whole  aim  of 
the  Act  ;  but  it  is  in  other  respects  valid  between  the  parties, 
so  as  to  pass  the  property  (d).  [And  a  statute  annulling 
grants  of  land  at  the  time  held  adversely  by  another,  and 
one  making  their  acceptance  a  misdemeanor,  do  not  affect  the 

(n)  London  Waterworks  Co.  v.  "  Delafield  v.  Golden,    1  Paige, 

Bailey,  4  Bina:.  283  (N.  Y.)  139. 

(b)  10  Geo.  4,  c.  56,  s.  27  ;  Morri-  ^o  Carter's  App..  10  Pa  St.  144. 

sou  V.  Grover,  4  E.x.  430.     See  also  ^^  Flint  ham  v.  Forsytlie,  9  Serg. 

Prentice  V.  London.  L.    11.    IOC.  &  R.  (Pa.)  133. 

P.  679  ;  Fleming-  v.  Self,  3   De  G.,  •^'-  Bvrne  v.  Walker,  7  Id.  483. 

M.    G.   997  ;    Mulkern   v.    Lord,  4  (c)  Marsiiall   v.    Bown.    7  M.  & 

App.  183,  48  \j.  J.Ch.  745.    Comp.  Gr.   188;   Hoy  land  v.  Breumer,  3 

Wriixht  V.  JMonarch  Invest.  Soc,  5  C.  B.  84. 

Ch.  D.  726,  and   Hack  v.  London  ((0  Philpotts   v.  Philpotts,  10  C. 

Provid.   Building  Soc,  23  Ch.   D.  B.  85. 
103. 

11 


162  SCOPE    AND    PL'KPOSE    OF    ACT.  [§  119 

entire  instruinent  containing  the  grant  of  such  hind,  but  only 
those  portions  thereof  as  are  in  violation  of  the  statutes.^'] 

§  119.  In  the  24  &  25  Vict.  c.  96,  which  consolidates  the 
law  relating  to  larceny  and  analogous  offences,  the  provision 
which  imposes  a  penalty  for  "  unlawfully  and  wilfully  "  kill- 
ing a  pigeon  under  circumstances  not  amounting  to  larceny, 
was  construed  as  not  applying  to  a  man  who  had  intention- 
ally and  without  legal  justification  shot  his  neighbor's 
pigeons  which  were  in  the  habit  of  feeding  upon  his  land  ; 
his  object  being  to  prevent  a  recurrence  of  the  trespass. 
His  act  was  "  unlawful,"  in  the  sense  that  it  was  actionable; 
and  it  was  undoubtedly  "  wilful  "  also  ;  but  as  the  object 
and  scope  of  the  Act  were  to  punish  crimes  and  not  mere 
civil  injuries,  the  word  "  unlawfully "  was  construed  as 
*'  against  the  criminal  law  "  {a).  [So,  one  who  removes  a 
seal  from  property  which  has  been  sealed  up  by  oflBcers  of 
the  customs,  in  ignorance  of  its  character,  and  in  the  honest 
execution  of  a  supposed  duty  in  the  care  and  transportation 
of  the  property,  is  not  liable  to  punishment  under  a  statute 
prohibiting"  wilfully  "  removing  an  official  seal."]  An  Act 
which  visited  wdth  fine  and  dismissal  a  road  surveyor  who 
demanded  or  wilfully  received  higher  fees  than  those 
allowed  by  the  Act,  would  not  affect  a  surveyor  who,  under 
an  honest  mistake  of  fact,  demanded  a  fee  to  which  he  was 
not  entitled  (J).  [Similarly,  a  statute  amiulling  any  "  wil- 
fully false  claim  "  would  not  affcsct  the  case  of  a  mere  dis- 
crepancy in  the  amount  of  the  claim  as  filed  of  such  a  des- 
cription as  may  be  consistent  with  good  faith."  Nor  would 
a  contract  made  usurious  by  a  mere  mistake  in  the  calcula- 
tion, and  not  by  any  wrongful  intent,  be  void  under  a  statute 

23  Towle  V.   Smith,  2  Robt.  (N.  state  of  intoxication).    An  act  may, 

Y  )  489.    And  see  ante,  t^  98,  Jaclc-  however,  be  "  wrongful,"  although 

son  V  Collins,  3  Cow.  (N.  Y)  85.  committed   entirely    by    mistalse  : 

(a)  Taylor  v.  Newman,  4  B.  &  S.  Webber    v.    Quaw,   46   Wis.    118. 

89   3'3  L.  J.  M.  C.   186.      See   also  See    "Knowingly    and   wilfully, 

Kenyon  v.  IJart,  6  Best  &  S.  249,  post,   ^  130,    U.    S.   v.  McKim,  3 

34  L.  J.  M.  C.  87  ;  Daniel  v.  .Tanes,  Pitts.  Rep.  155. j 

2  C  P  D  351  ;  Spiccr  v.  Barnard,  ^4  u.  S.  v.  R.  R.  Cars,  1  Abb.  U. 

1  E.  &  E.   874.  28  L.  J.  176.      [As  S.  196.     See  post,  §  129. 

to  the  meaning  of  "  wilfidlv,"  see  (b)  R.  v.  Badger,  6  E.  &  B.  13,  2.> 

State    V.    Preston,    34  Wis.    675 ;  L.  J.  M.  C.  8. 

Smith  V.  Wilcox,   47   Vt.  537   (in  "  Barber  v.    Reynolds,    44  Cal. 

relation   to  acts  committed    in    a  519,  533. 


§  120]  SCOPE    ANP   PURPOSE   OF   ACT.  163 

avoiding  usurious  contracts."  Conversely,  an  act  of  the 
Legislature  of  Missouri,  of  March  17,  18G8,  ajiproving  the 
sale  and  confirming  the  title  of  the  Iron  Mountain  Railroad 
Company  in  the  purchaser,  did  not  prevent  the  State  from 
prosecuting  claims  against  the  parties  who  had  committed 
frauds  against  the  state  in  relation  to  the  railroad. ''J  An 
Act  which  empowered  inspectors  to  inspect  the  scales, 
weights  and  measures  of  persons  offering  goods  for  sale,  and 
of  seizing  any  found  "  light  and  unjust,"  was  construed  as 
limited  to  cases  where  the  injustice  was  prejudicial  to  the 
buyer,  but  as  not  applying  to  a  balance  which  gave  seven- 
teen ounces  to  the  pound,  that  is,  which  was  unjust  against 
the  seller ;  since  the  object  and  scope  of  the  Act  were  limited 
to  the  protection  of  the  former  {a). 

§  120.  An  Act  which,  after  appointing  trustees  to  pull 
down  and  rebuild  a  parish  church,  authorized  them  to  allot 
the  pews  and  to  sell  the  fee  simple  of  such  of  them  as  were 
not  appropriated  hj  the  Act,  to  the  inhabitants  of  the  parish, 
with  power  to  the  owners  to  dispose  of  them,  M^as  held  not 
to  authorize  a  conveyance  of  the  soil  and  freehold  of  the 
land  on  which  the  pews  stood,  but  only  the  easement,  or 
right  to  sit  in  the  pew  during  divine  service  (J).  And 
where  a  church  was  built,  under  a  similar  Act,  by  subscrib- 
ers in  whom  the  freehold  was  vested,  and  the  trustees  had 
power  to  sell  the  pews ;  and  a  sul)sequent  Act,  reciting  that 
doubts  had  arisen  as  to  the  estate  and  interest  which  the  sub- 
scribers and  proprietors  had  in  the  pews,  enacted  that  the 
fee  simple  should  be  vested  in  them,  it  was  held  that  it  was 
not  the  freehold  interest  in  the  soil  that  was  vested  in  them, 
but  a  special  interest  created  by  Parliament  in  the  easement 
(c).  So,  the  Public  Health  Act  of  1875,  which  enacted 
that  the  streets  should  vest  in  the  local  authority  was  con- 
strued as  intending,  not  that  the  soil  and  freehold  should 


««  Sutton  V.  Fletcher,  6  Blackf.  4  B.  &  A.  312  :  East  Gloucestershire 

(Ind.)  363.      And  see  Mortimer  v.  R.  Co.  v.  Bartholomew,  L.  R.  3  Ex, 

Pritchard,    1  Bailey  Eq.    (S.    C.)  15. 

505.  (b)  Hiiide  v.  Chorlton,  L.  R.  3  C. 

"  State  V.  McKay.  43  Mo.  594.  P.  104. 

(a)  Brooke  v.   Shadgute,  L.    R.  8  (c)  Brumfitt  v.  Roberts,  L.  R.  5 

Q.  B.  353.      See  Edwards  v.  Dick,  C.  P.  834. 


1G4:  SCOPE    AND    PURPOSE    OF    ACT.  [§   120 

vest,  but  only  the  surface  of  the  soil,  and  as  much  of  it  in 
depth  as  was  necessary  for  doing  all  that  was  reasonably  and 
usually  done  in  streets  (a),  and  for  so  long  only  as  it  con- 
tinued to  be  a  street  (5).  [Similarly,  where  an  act  authorized 
the  Orphans'  Court  to  ajipoint  trustees  of  the  estates  of 
absentees,  durante  absentia,  it  was  held  that  such  appoint- 
ment imiDorted  only  the  absence  of  the  person  for  whom  the 
trustee  was  desired,  and  did  not  adjudicate  the  ownership  of 
any  property  made  the  subject  of  the  trust,  or  that  the 
absentee  is  either  dead  or  alive/"  An  act  providing  that 
"every  will  shall  be  construed,  with  reference  to  the  real 
and  personal  estate  comprised  in  it,  to  speak  and  take  effect 
as  if  it  had  been  executed  immediately  before  the  death  of 
the  testator,  unless  a  contrary  intention  shall  appear  by  the 
will,"  affects  only  the  property  devised  or  bequeathed,  and 
does  not  create  a  disposing  power  in  the  testator  just  before 
his  death  which  he  did  not  possess  when  he  executed  the 
will  :  "  if  he  was  clearl)'  incompetent  to  make  a  will  when 
he  executed  one,  the  fact  that  just  before  his  death  he 
became  entirely  competent  to  execute  one,  but  did  not," 
does  not  validate  the  will.'"'  An  act  exempting  a  homestead 
to  a  debtor  decides  nothing  as  to  his  title.^"] 

The  Metropolitan  Building  Act  of  ISSo,  which  gives  a 
right  to  raise  any  party  structure  authorized  by  the  Act,  on 
condition  of  '' making  good  all  damage"  occasioned  there- 
by to  the  adjoining  premises,  was  held  not  to  authorize  the 
raisinir  of  a  structure  which  obstructed  the  ancient  lights  of 
the  adjoining  premises;  for  the  only  damage  contemplated, 
by  the  Act  was  structural,  and  not  that  which  resulted  from 
the  invasion  of  a  right.  And,  having  regard  to  the  scope 
of  the  enactment,  the  expression  "making  good"  was 
understood  to  mean  that  the  adjoining  premises  were  to  be 

(a)  Coverdale  v.  Charlton,  4  Q.  a  separate  estate  in  favor  of  a 
B.  D.  104,  48  L.  J.  123.  daughter  tlieu  10  years  of  uge  and 

(b)  Rolls  V.  St.  George,  South-  not  in  immediate  contemplation  of 
wark,  14  Cli.  D.  785.  m.irriaiie,  is  not  rendered  effectual 

'■"*  Esterly's   App.,    109   Pa.     St.  by  (he  fact  that  8  years  thereafler, 

222.  upon  the  act  11  Apr.  1879,  P.  and  before  the  testator's  death,  tiie 

L.  21.  girl  married  :  Ibid. 

29  Neale's  App.,   104  Pa.  St.  214.  ""  Re  Swearinger,  5  Sawyer,   52;. 

Hence  a  will  undertaking  to  create  Spencer  v.  Geissmau,  37  Cal.  96. 


§  121]  SCOPE    AND    PURPOSE    OF    ACT.  1G5 

irestored  to  their  oi'iG;inaI  state,  not  that  pecuniary  compen- 
sation should  be  made  {a). 

§  121.  Some  decisions  on  tlie  construction  of  the  74th 
section  of  the  Harbors  Act  of  1847,  illustrate  the  principle 
under  consideration.  That  section  enacts  that  the  owner  of 
a  vessel  is  to  be  answerable  for  any  damage  done  by  it,  or 
by  any  person  enjployed  in  it,  to  a  harbor,  pier  or  dock,  ex- 
cept when  the  vessel  is  in  charge  of  a  compulsorily  taken 
pilot.  Construed  literally,  as  it  was  by  the  Queen's  Bench 
(J),  it  made  an  owner  responsible  for  the  injury  done  by  his 
ship  to  a  pier,  after  she  had  been  driven  aground  and  neces- 
sarily abandoned  by  her  crew,  and  was  dashed  by  the  storm 
against  the  pier.  Tlie  Court  of  Exchequer  Chamber 
thought  that  the  enactment  was  to  be  construed  as  tacitly  ex- 
cepting damage  done  by  the  act  of  God  and  the  Queen's 
enemies,  for  which  by  the  general  law  of  the  land,  a  ship 
owner  is  not  responsible  {c).  The  House  of  Lords  held 
that  the  owner  was  not  liable,  on  the  ground  that  the 
general  scope  and  object  of  the  Act  were  merely  to  collect 
the  clauses  which  Parliament  usuallj'  inserted  in  local  har- 
bor bills,  and  to  give  facilities  of  procedure  to  the  under- 
takers of  such  works  ;  and  that  the  section  did  not  create  a 
new  liability,  but  only  facilitated  proceedings  against  the 
registered  owner  when  damages  were  recoverable  (cl). 

The  Act  IG  ifc  17  Yict.  c,  96,  for  regulating  the  care  and 
treatment  of  lunatics,  furnishes  a  remarkable  illustration  of 
the  principle  under  consideration.  Its  provision  that  any 
superintendent,  officer,  nurse  or  servant  of  any  registered 
hospital  or  licensed  house,  "  or  any  person  having  the  care 
or  charge  of  any  single  patient,"  who  ill-treated  a  patient, 
was  held  not  to  apply  to  a  husband  who  ill-treats  his  lunatic 
wife  ;  for  it  was  not  within  the  scope  of  the  Act  to  deal  with 
cases  where  the  custody  of  the  lunatic  was  owing  to  domes- 
tic relationship  ;  and  the  woman  was  in  her  husband's  cus- 
tody, not  because  she   was  mad,  but  because  she   was  his 

(a)  Crofts  V.  llaldane,  L.  R.  2  Q.  (b)    10    Vict.    c.    27  ;   Dennis   v. 

B.  194.      [Sec  for  construction  of  Tovell,  L.  li.  8  Q.  B.  10. 

the  phrase  "make  good  all  losses  {<;)  Wear      ("oinmissioners      v. 

to  depositors:"  Queenan  v.  Palmer,  Adamson.  L.  K.  1  Q.  B.  D.  546. 

117  111.  619.]  (d)  Id.  3  App.  743. 


1G6  scui'K  AND  rniPosE  of  act.  [§  122' 

wife  (a).  But  the  Aet  wouKl  apply  tuanKiu  who  ill  treated 
Lis  lunatic  brother  in  his  char<,a^,  for  he  has  no  legal  custody 
of  liiui  by  virtue  of  his  relationship  (b). 

§  122.  [As  further  instructive  illustrations  of  this  princi- 
ple of  construction  the  following  instances  may  be  cited. 
Where  a  statute  provided  thiit  the  original  jurisdiction  of 
the  Circuit  Court  of  the  Southern  District  of  JMew  York 
should  be  confined  to  causes  arising  within  said  district,  and 
should  not  extend  to  causes  arising  within  the  Northern 
District, — the  object  of  the  provision  clearly  being  to  appor- 
tion jurisdiction  and  business  as  between  the  two  districts 
only, — it  was  held,  that,  from  the  jurisdiction  of  the  Southern 
District  Circuit  Court  only  such  causes  were  to  be  deemed 
excluded  by  the  act,  as  arose  in  the  Northern  District,  not, 
however,  such  as  arose  outside  of  both  districts.^'  Similarly, 
a  statute,  providing  that  a  person  should  not  be  sued  before 
any  justice  of  the  peace  except  in  the  township  in  which  he 
resided,  having  for  its  immediate  object  to  prevent  justices 
at  the  county  seat  from  monopolizing  the  business  in  the 
county,  was  held  not  to  apply  to  the  case  of  a  resident  of 
another  county  or  state  coming  into  a  town  and  there  served 
with  process. °'  So,  where  the  object  of  an  act  was  merely 
the  disposal  of  certain  property  of  a  city,  and,  in  the  descrip- 
tion of  the  same  in  the  statute,  a  certain  street  was  referred 
to  as  a  boundary  of  the  entire  one  side  of  the  same,  whilst 
in  fact,  it  extended  along  only  part  of  it,  such  reference  was 
held  ineffectual  to  extend  the  street  itself  in  length.'^  And 
an  act  extending  the  bounds  of  a  town  over  adjacent  navigable 
waters,  the  extension  being  merely  for  the  purpose  of  civil 
and  criminal  jurisdiction,  was  held  not  to  operate  as  a  grant 
to  the  town  of  the  land  covered  by  the  waters.^*  An  act 
confcri'ing  equity  jurisdiction  in  "  all  cases  of  trust  arising 

(a)  R.  V.  Rnndle,  Dears.  483,  24  should  be  understood  in  a  particu- 

L.  J.  M.  C.  129.  liir  sense  ;  and  (2)  oT  tlie   presump- 

{b}  R.  V.  Porter,  Leigh  &  G.  394,  fion  against  an  intention  to  narrow 

33  L.  J.  M.  C.  12G.  the  jurisdiction  of  a  court:  see  post, 

3>    Wheeler    v.    McCormick,    8  g^  lol  et  seq. 

Blatchf.  267.     This  interpretation  32  M,.,xwell  v.  Collins.  8  Ind.  38. 

seems  also  justifiable  on  the  grounds  ^^  Pcoj^le  v.  Dana,  22  Cal.  11. 

(1)  of  an  intention  appearing  from  ■'•■'  I'ninier  v.  Ilicks,  G  Johns.  (N. 

the  context  that  the  general  words  Y.)  13:i. 


§  122]  SCOPE    AND    PLKPOSK    OF    ACT.  107 

under  deeds,  wills,  or  in  the  settlement  of  estates  "  was  held 
to  apply  only  to  oxi)ress  trusts  arising  from  the  written  con- 
tract of  the  decedent,  not  to  pnch  as  are  implied  by   law  or 
grow  out  of  the  official  situation  of  an  executor  or  adminis- 
trator."    Another,  relating  to  nscs  and  trusts,  was  similarly 
confined  to  real  estate  ;'"  and  the  provision  of  the  judiciary 
act  declaring  the  laws  of  the  several  states  the  rule  of  decis- 
ion in  federal  courts  in  certain  cases,  was  held   inapplicable 
in  the  construction  of  ordinary  contracts  and  questions  of 
general  commercial  law."     So,  an  act  causing  forfeiture  of 
a  life  estate  leaves  unaffected  the  estate  in  remainder,"  and 
one  making  long  terms  of  years  real  estate  for  certain  pur- 
poses has  no  effect  upon  the  reversions  expectant  upon  those 
terms.'"     Similarly,  a  private  act  directing  the  sale  of  a  per- 
son's property  by  the  Surveyor-General  without  warranty, 
and  the  application  of  the  money  in  payment  of  certain  cred- 
itors, operates  only  as  a  quit  claim  of  any  right  or  interest  of 
the  State  in  the  property  and  does  not  take  away  the  rights 
of  third  persons.'"       An  act  legalizing  the  action  of  certain 
townships  as  to   paying  bounties,  etc.,   does   not  extend  to 
refunding    advances    made    by    individuals    on    their     own 
account  and  not  on  the  credit  of  the  townships,  or  in  reli- 
ance upon  their  subsequent  ratification."     An  act  permitting 
a  turnpike  road  company  to  abandon   a  portion  of  its  road, 
does  not  discharge  its  directors  from  a  penalty   incurred  in 
reference  to  such  portion  of  the  road  previously   to  the  act 
authorizing  its  abandonment."     A  provision  that  the  trans- 
fer of  a  public  contract  shall   cause  its  annulment,  does  not 
apply  to  a  preliminary  arrangement  for  the  purpose  merely 
of  uniting  capital  to  obtain  the  means  of  fultilling  the  con- 
tract, in  the  absence  of  any  corrupt  intention   to   influence 
the  bidding  or  evade  the  duties  and  responsibilities  of  a  pub- 
lic contractor."     Nor  does  an  act  "regulating  criminal  \n-o- 


85  Given  v.  Simpson,  5  Me.  303.  ■"  People     v.     Supervisors,     14 

36  Baker  v.  Terrell,  8  Minn.  198.  W\ch.    336.       Comp.    Weister    v. 

31  Swift  V.  Tyson,  Ki  Pet.  1.  Hade,  53  Pa.  St.  474,  ante,  §  79. 

38  Archer  v.  Jones,  26  Miss.  583.  ■»-  Kane  v.  People,  8  Wend.    (N. 

39  lUirnett  v.  Thompson,  7  Jones  Y.)  203. 

L.  (N.  0  407.  ^  Field  V.  U.   S.,    16  Ct.   of  CI 

40  Jaclvson   v.    Callin,    2  Johns.  434. 
(N.  Y.)  248. 


lOS  SCUl'K    AM)    l>li:i>t)ffK    OK    ACT.  [§  123 

ceedino-s"  extend  to  collatoriil  issues  ;*'  iiur  a  statute  reqiiir- 
ino-  a  contractor  for  work  for  the  state  to  give  bond  with 
sureties  to  pay  all  laborers  employed  by  him  on  the  work 
included  in  his  contract,  to  laborers  employed  by  a  sub- 
contractor." So,  it  was  held  that  the  act  2  March,  18G7, 
relatino-  to  removal  of  suits  from  state  to  U.  S.  Circuit 
courts,  had  no  application  to  a  controversy  between  a  citi- 
zen of  the  state  in  which  suit  is  brought  and  an  alien."  An 
act  annulling  "  all  agreements  to  pay  attorney  fees,  depend- 
ing on  any  condition,"  made  part  of  any  bill,  note,  etc.,  for- 
bids only  conditional  agreements,  not  absolute  or  unqnalilicd 
ones  •"  and  by  reference  to  its  purpose,  an  act  may  be  shown 
to  be  designed  to  have  a  retrospective  or  curative  operation 
only,  and  to  be  without  prospective  force." 

§  123.  [So,  where  an  act  declaring  the  property  of  mar- 
ried women  to  be  theirs  and  empowering  them  to  use  and 
enjoy  the  same,  as  if  sole,  was  construed  to  have  been  in- 
tended merely  for  the  protection  of  the  wife's  property 
against  the  husband's  interference  and  his  creditors,  it  was 
lield  to  be  beyond  its  scope  to  give  her  an  absolute  right  to 
dispose  of  her  estate  without  the  husband's  consent,  or  in 
any  other  way  to  alter  the  legal  incidents  of  the  marriage 
relation."  Nor  would  a  provision,  that  on  a  judgment 
recovered  against  liusband  and  wife  for  the  tort  of  the 
latter,  execution  shall  first  issue  against  the  property  of  the 
wife,  give  any  exemption  to  the  husband  from  liability  for  his 
wife's  torts,  beyond  this  primary  liability  of  her  estate.'" 
Nor  can  a  provision  making  the  wife  liable  for  her  own 
torts  have  the  effect  of  removing  the  husband's  liability  for 
acts  of  the  wife  done  under  circumstances  amounting  to 
coercion  on  his  part,  which,  thcrefoi'e,  the  law  regards,  as 
the  torts  of  the  husband."  And  it  has  been  held  that  an  en- 

«  People  V  YouDffs,  1  Cai.  (N.  "'  Pettit  v.  Fretz,  33.Pa.  St.  118 

Y.)  37.  '"  Quick  v.   Miller,  100  Pa.    St. 

«  McCluskey  v.    Cromwell,    11  G7.                               ^       ,     ^^  -.r 

j;[-  Y   593  '"'  Sec  Longey  v.  Leach,  57  Vt. 

'•«6  Slinson  v.  11.  R.  Co.,  20  Minn.  377  ;  Doherty  v.  Madgett  (Vt.)  2 

492  All.  Rep.   115  ;  Weber  v.  Weber. 

^I'Chvirciiniun  V.  Martin,  .■)4  hid.  47    :Mi(:li.   569.     See  Atly.-Geii.  v. 

ySO.  Riddle,  2  Cr.  &  Jer.  493  ;  Taylc)r 

■•sSce  Marsh  v.  Nelson.  101  Pa.  v.  Greene,  8  Car.  &  P.  ;516  ;  34  E. 

St.  51  ;  Lucas  v.  State,  8«  Ind.  180.  C  L.  R.  754. 


g  124]  SCOPE  AND  puiii'osr:  of  act. 


109 


actment  declarini;-  that,  a  iiiarriod  woman  may  l^usuod  for  her 
torts,  without  joinder  of  her  husband,  and  in  ull  respects  as 
if  sole,  does  not  take  away  her  common  law  immunity  from 
arrest  on  capias  ad  respondendum."  Nor  does  a  statutory 
provision  rendering  a  married  womaii  capable  of  suing,  in 
all  respects  as  if  she  were  a  feme  sole,  without  joinder  of  her 
husband,  abrogate  the  rule  that  a  married  woman  cannot  act 
as  guardian  ad  litem,  next  friend,  etc. ;  the  provision  being 
designed  to  let  her  sue  only  for  her  own  benefit."  An  act 
prescribing  the  manner  in  which  husband  and  wife  may 
"  dispose  of  and  convey  the  estate  of  the  wife  or  her  right  of, 
in,  or  to  any  lands,  tenements,  or  hereditaments  whatsoever," 
was  held  to  enable  a  married  woman  to  convey  or  incumber 
only  her  existing  interest  in  realty  held  in  possession,  remain- 
der or  reversion,  and  not  to  make,  e.  g.,  a  valid  mortgage  of  an 
estate  resting  in  mere  possibility,  which  could  be  effectual, 
at  best,  only  as  a  contract  to  convey  and  as  in  the  nature  of  a 
covenant  to  stand  seized.'*  Nor  does  an  act  giving  to  the 
wife,  as  her  separate  property,  with  or  without  the  right  of 
suit,  the  earnings  of  her  labor,  change  the  law  so  as  to  give 
Jier  a  claim  for  work  dune  by  her  for  her  husband,  or  in  his 
business." 

§  121:.  [An  act  intended  to  remove  the  incompetency  of 
parties  to  suits  and  other  legal  proceedings,  on  the  score  of 
interest,  to  testify  therein,  cannot  have  the  effect  of  render- 
ing incompetent  one,  who  before  the  act,  was  a  competent 
witness."  Nor  will  an  act  declaring  that  all  former  deeds 
shall  have  a  certain  effect,  if  certain  recpiisites  are  observed, 
prevent  their  being  used  as  evidence  in   the  same   manner 

5-  Whnleu  v.  Gubel,  44  Leg.  Int.  she  miiy  thereafter  acquire  ;  "  Be 

(Pa.)     480.      Compare,     however,  Insole,  L.    H.    1   Eq.  470 ;   Whit- 

Muser  V.  Miller.  VZ  Abb-  N.  Cas.  tinglmni's  Tru.st.  12    W.  R.  7T5  ; 

(N.    Y.)  305  ;    65   How.    Pr.    283.  Deakin  v.     Lakin,  L.  K.  30   Ch. 

See  also,  as  to  attachment.  Frank  v.  D.  101). 

Siesel.  9  Mo.  App.  407.  See  AdiVii.  "  See  lleynoids  v.  Robinson,  64 

"/ft    re    Duke    of    Somerselt,  N.  Y.  5S!)  ;  Biall  v.  Kiali,  4  llun 

Thynncv.  St.  Maur.  L.   R.  34  Cli.  (X.  V.)17l;  Cunningham  v.  Cau- 

D.  465.  ney,  12  111.   App.  437  ;  Triplctt  v. 

"  Dorris  v.  Erwiu,   101  Pa.   St.  Graham,  58  Iowa,  135;  Morgan  v. 

230.     But   see   lioud  v.    Bunting,  Bolles,  30  Conn.  175. 

78   Id.  210.     And  compare,  as   to  ^^  Slieetz  v.  llanbest,  81  Pa.  St. 

the    broader  phrase    "property."  100  ;  Packer  v.  Noble,  103  Pa.  St. 

Knight   V.  Thayer,  125  -Ma.'^s.  25.  188. 
But  see,  as  io    "property  -which 


170  SCOPE    AND    PURPOSE   OF    ACT.  [§  125- 

ill  wliidi  thoy  might  before  liavc  been  used."  So  a  provi- 
sion intended  to  confer  larger  powers  on  married  women, 
but  prohibiting  a  married  woman  from  becoming  surety,, 
etc.,  for  another,  will  not  debar  her  from  mortgaging  her 
real  estate  for  the  debts  of  her  husband,  that  being  a 
power  she  had  before,  and  the  transaction  not  necessarily,  or 
even  properly,  being  included  under  the  term  suretyship." 
Similarly,  an  act  prohibiting  preferences  in  assignments  by 
debtors,  in  trust  for  benelit  of  creditors  and  requiring  the 
assio-nmciit  to  stand  for  the  benefit  of  all  the  creditors,  does 
not  impliedly  prohibit  all  compositions  with  creditors,  the 
law,  before  that  act,  recognizing  compositions  with,  as  well 
as  an  assignment  for  creditors,"'  nor,  indeed,  does  it  annul  a 
preference  in  any  other  mode  than  by  such  an  assignment." 

§  125.  [An  act  authorizing  a  writ  of  error  to  be  sued  out 
by  any  person  aggrieved  "  by  the  judgment  of  any  court  of 
common  pleas  upon  any  writ  of  quo  warranto,"  etc.,  does 
not  change  the  rule  of  law  that  the  allovi^ance  of  the  writ,  in 
the  first  instance,  is  discretionarj^,  and  hence  the  action  of 
the  court  upon  a  rule  to  show  cause  why  the  writ  should  not 
issue  is  not  the  subject  of  a  writ  of  error.*'  So,  an  act  giving 
an  appeal  from  the  refusal  of  the  court  to  open  judgments 
entered  on  warrants  of  attorney,  does  not  change  the  rule 
that  the  exercise  of  such  jurisdiction  lies  within  the  sound 
discretion  of  the  Court,  and  all  the  reviewing  court  has  to 
determine  is,  whether  the  discretion  was  properly  exercised 
below."  Moreover,  where  a  judgment  has  been  revived, 
the  act  will  apply  in  those  cases  in  which  the  revival  was 
amicable  ;"  but  not  in  those  in  which  the  revival  was  by 
adversary  proceeding:"  the  former  ease  being  within  the 
obvious  purpose  of  the  statute,  i.  e.,  to  give  the  defendant 
a  day  in  court ;  and  the  latter  being  as  obviously  beyond  its 
scope ;  for  the  defendant  has  had  his  day."     And  so,  where 

"  Jackson  v.  Bradt,  2  Cai.  (N.  «"  York  Co.  B'k  v.  Carter,  38  Pa. 

Y.)  1G9.  St.  44G. 

"-s  See  Buttcrfield  v.  Okie,  36  N.  «'  Com'th  v.  Davis,  109  Pa.  St. 

J.  Eq.  482  ;  Baldwin  v.  Fla;rg,  Id.  128. 

48;    Bartiett   v.  Barllett,  4' Allen  «'^  Earley's  App.,  90  Pa.  St.  321. 

(Mass.)  440;   Heburn  v.  Warner,  «3  j>amb's  App.,  89  Pa.  St.  407. 

112  3Iass.  271.  "First  Nat.    Bank's  App.,  10& 

^»  Wiener   v.  Davis,  18  Pa.  St.  Pa.  St.  08. 

331.  "  See  lb.  p.  71 


§  12Gj  SCOPE    AND   PUliPOSE   OF    ACT.  171 

ail  act  provided,  that,  upon  tlie  trial  of  all  cases,  exclusively 
triable  ill  the  court  of  Oyer  aud  Terminer,  "exceptions  to- 
a/ny  decision  of  the  court  may  be  made  by  the  defendant, 
and  a  bill  thereof  shall  be  sealed  in  the  same  manner  as  is 
provided  and  practised  in  civil  cases;  and  the  accused,  after 
conviction  and  sentence,  may  remove  the  indictment,  recoi'dy 
and  all  proceedings  to  the  Supreme  Court,"  it  was  held  that 
the  act  did  not  authorize  exception  or  writ  of  error  to  a 
matter,  which,  in  civil  cases,  was  recognized  as  one  of  dis- 
cretion with  the  trial  court ;  e.  </.,  to  the  refusal  of  a  new  trial 
or  a  continuance,  attachment  of  witnesses,  and  the  like,  or 
the  granting  of  a  continuance  on  motion  of  the  common- 
wealth." 

§  126.  [Again,  a  statute  will  not  be  construed  as  permit- 
ting an  act,  e.  g.,  gaming,  which  is  prohibited  by  previous 
statutes,  if  such  construction  can  be  fairly  avoided."  An  act 
rendering  parties  in  interest  competent  to  testify  on  their  own 
behalf  will  not  affect  the  established  rule  that  an  indorser  of  a 
negotiable  instrument  shall  not  be  a  witness  to  invalidate 
the  instrument  to  which  he  is  a  party."  The  immediate 
object  of  the  Pennsylvania  interpleader  act  of  1848  being 
the  protection  (^f  sheriffs,  etc.,  it  docs  not  relieve  the  plaintiff 
in  an  execution,  who  directs  the  seizure  of  property  of  a 
person  not  a  party  against  whom  the  process  is  issued  from 
liability  in  trespass,  unless,  under  the  sheriff's  rule,  the  owner 
voluntarily  becomes  a  party  to  the  adjudication  of  his 
claim."  So,  an  act  giving  the  Court  of  Quarter  Sessions 
jurisdiction  to  lay  out  public  streets  within  the  limits  of 
boroughs  in  the  county,  and  providing  that  "  damages  to 
the  owner  of  land  injured  thereby  shall  be  assessed  as  pro- 
vided under  the  general  road  laws,"  does  not  make  the  same 
payable  under  those  laws,  by  the  county,  but  leaves  that 
liability  upon  the  boroughs  under  the  general  borough  law." 
So  an  act  providing  for  a  method  of  assessing,  etc.,  damages 
for  injuries  arising  from  an  excavation  or  embankment  within 

*'  Alexander  v.  Com'tb,  105  P;i.  ^*  Johivs   Adm'r  v.  Pardee,  109 

St.  1.  Pu.  St.  5-15. 

"  Aicardi  v.  Alabama,  19  Wall.  '^^  Lurzelcre  v.  Iluubert,  109  Pa. 

635.  St.  515. 

'0  In  re  AirvStr.,  113  Pa.  St.  281. 


172  SCOPE    AND    PUIiPOSK    OF    ACT.  [§  127 

tlie  boundaries  of  a  public  liigbwiiy,  will  not,  it  is  siiid,  be 
extended  beyond  the  purpose  it  expresses,  e.  g.,  to  the  case 
of  a  railroad  laying  an  additional  track  in  front  of  plaintiff's 
lands,  obstructing  the  approach  to  the  same."  An  act  giving 
an  adopted  child  the  right  to  inherit  was  held  not  intended 
to  change,  in  any  respect,  the  law  relating  to  collateral  in- 
heritance taxes,  from  which  only  lineal  descendants  were 
exempted."  Nor  does  an  act  authorizing  attachment  of 
Avages  for  boarding  debts  deprive  the  debtor  of  the  benefit 
of  the  exemption  laws,  but  can  apply  only  where  the  benefit 
of  these  laws  is  not  claimed  in  proper  time  or  form,  or  where 
the  wages  exceed  the  amount  exempted."  Again,  an  act 
"  to  provide  for  the  admission  of  certain  classes  of  the  insane 
into  Iiospitals,"  etc.,  was  held  not  to  supply,  modify  or  repeal 
any  of  the  provisions  of  an  earlier  act  respecting  the  issuing  of 
a  commission  de  Innatico  inquirendo,  and  the  disposition  and 
control  of  the  estates  of  lunatics  ;  so  that  the  summary 
inquiry  under  the  later  act  did  not  dispense  w'th  or  prevent 
the  inquisition  under  the  earlier  act,  as  related  to  the  appoint- 
ment of  a  committee,  the  sale  of  real  estate,  etc."  Nor  does 
an  act  imposing  a  penalty  for  cutting  timber  extend  to  the 
case  of  a  co-tenant  ;'*  or  a  statute  limiting  the  time  for 
recovery  of  fines  and  forfeitures  to  cases  of  murder  or  other 
felony.'"' 

§  127.  Change  of  Common  Law.— [It  is  observable  from  the 
decisions  referred  to  in  the  preceding  sections,  that  the  pre- 
sumption against  an  intent  to  alter  the  existing  law  beyond 
the  immediate  scope  and  object  of  the  enactment  under  con- 
struction, a])piies  as  well  where  tiie  existing  law  is  statutory, 
as  where  it  is  promulgated  by  decisions."  It  refers  to  the 
whole  system  of  pleading  and  practice  to  wdiich  the  statute 
applies  and  of  which  its  I'ule  is  to  form  a  part :   the  latter 

"  Cumberlaml,  etc.,  R.  R  Co.  v.  "  Wheeler  v.  Carpenter,  107  Pa. 

Rhoadariner,    107     Pa.     St.     214.  St.  271. 

And  sec  Newcastle,  etc.,  R.  R.  Co.  '«  State  v.  Taylor,  2  JMcCord  (S. 

V.  McCliesnev.  85  Id.  526.  C.)  4S3. 

"  Coni'lh  "v.  Nancrede,  32   Pa.  "  See  Sedgw.  p.  224,   note  ;  for 

St.  38!).  the    judicial    decisions  upon     the 

"  Smith  V.  McGiuty,  101  Pa.  St.  statutes,  as  has  been  seen,  ante,  § 

403.  1,  note  1,  form  a  part  of  the  statute 

•>*  Halderman's  App.,  104  Pa.  St.  law. 
351. 


§    127]  SCOPE    AND    PURPOSE    OF    ACT.  173' 

must  be  construed  consistently  with  the  former."  And  it 
refers  equiillj  to  the  common  law,  in  whose  rules  and  princi- 
ples a  statute  is  not  pi-csumed  to  make  any  change 
beyond  what  is  expressed  in  its  provisions,  or  fairly  implied 
in  them,  in  order  to  give  them  full  operation.'"  It  has  Ijeen 
said  that  acts  of  congress  are  to  be  construed  by  the  i-iiles  of 
the  common  law  ;*"  that  statutes  are  to  be  intei'preted  in  the 
light  of  the  common  law,"  with  reference  to  the  principles 
of  the  common  law  in  force  at  the  time  of  their  passage  ;" 
that  technical  legal  terms  are  to  be  taken,  as  a  general  rule, 
and  in  the  absence  of  a  countervailing  intent,  in  their  estab- 
lished common  law  significance  ;"  and  that  statutes  in  affirm- 
ance of  the  common  law  should  be  construed,  as  to  their 
consequences,  in  accordance  with  the  common  law."  In  all 
these  cases  and  many  others,  the  principle  is  recognized 
that  an  intent  to  alter  the  common  law  beyond  the  evident 
purpose  of  the  act  is  not  to  be  presumed.  It  has,  indeed,, 
been  expressly  laid  down,  that  "statutes  are  not  presumed 
to  make  any  alteration  in  the  common  law  further,  orother- 
w^ise,  than  the  act  does  expressl}^  dechire ;  therefore,  in  all 
general  matters,  the  law  presumes  the  act  did  not  intend  to 
make  any  alteration  ;  for,  if  the  Parliament  had  that  design, 
they  would  have  expressed  it  in  the  act  ;"®^  that  "  the  rules  of 
the  common  law  are  not  to  be  changed  by  doubtful  implica- 
tion."** And  it  is  probably  true,  that,  taking  one  case  with 
another,  "an  intention   on    the   [)art   of    the    Legislature  to • 

'*  McDonegal  v.  Dougherty,  14  v.   La  Crosse,  etc.,  Co.,    10  Minn. 

Ga.  G74.  386  ;  Blacknian  v.   Wbeatoii,  13  Id. 

"  Scaife  v.  Stovall.  67  Ala.  287.  320.      Thus  tlie  common  law  prin- 

8"  Rice   V.  R.   R.    Co.,   1    Black.  ciple.  that  dispenses  with  notice  of 

358.      The  legislature  is  presumed  (;ause  of  arrest  where  a  person  is 

to  know  the  common  law  ;  Jones  taken   in   the   commission    of    an 

V.   Dexter,  8  Fla.  270,  28().  offence,    or     upon     fresh    pursuit 

*'  Scaife  V.  Stovall,  supra.  1  hereafter,  is  held  not  changed  by 

*'- Ilowe   V.    Peckham,    G    How.  tlie   word   "escape"   in  §  5038  of 

Pr.  (N.  Y.)  229.  the  Code  of  Tennessee,  providing 

**   Apple     V.    Apple,     1     Head  an  exception  to  the  recpiirement  of 

(Tenn.)  348  ;  and  see  ante,  §  3.  notice  of  cause  of  arrest  where  the 

**  Baker  v.  Baker,  13  Cal.  87.  person  is  taken  in  the  actual  com- 

*^  Arthur  v.  Bokenham,  11  Mod.  mi-ssion  of  tiic  offence,  "  or  is  pur- 

150-        And   see,    to    substaiUially  sued  immediately  after  the  ^'scape," 

same  effect,  Heiskell  v.  Baltimore,  that   word  being   used,    not   in  its 

65  Md.  207.  techniral  sense,  but  as  equivalent 

^^  Wilbur    V.    Crane,    13    Pick,  to  "Uee  from:"  Lewis  v.  State,  3 

(Mass.)  284.  290.     And  see  Bennett  Head  (Tenn.)  127. 

V.  llollman,  44  Miss.  323  ;  Sullivan 


174: 


SCOPE    AND    PURPOSE    OF    ACT. 


[§127 


alter  the  statute  law  is  sometimes  presumed  upon  much 
sli*Witer  (grounds  than  would  support  any  such  inference  in 
the  case  of  the  common  law.'""  But  in  this  coimtry,  the 
rule  has  assumed  the  form  of  a  dogma,  that  all  statutes  in 
derogation  of  the  common  law,  or  out  of  the  course  of  the 
common  law,  are  to  be  strictly  construed/'  Undoubtedly, 
wherever  the  construction  of  an  act  falls  under  and  is  affected 
by  the  operation  of  the  presumption  against  a  change  of 
the  existing  law  beyond  its  immediate  objects  and  purposes, 
the  result  is  a  certain  strictness  of  construction/'  But  the 
"strict  construction"  referred  to  in  the  formula  stated  goes 
])evond  this,  and  requires,  as  in  the  interpretation  of  penal 
laws,'"  that  a  case,  in  order  to  be  within  the  meaning  of  a 
statute  in  derogation  of  the  common  law,  must  be  as  well 
within  its  letter  as  within  its  spirit."  There  are,  indeed, 
decisions  scattered  through  the  reports  in  which  this  doc- 
trine has  not  been  followed,  or  possibly  which  establish,  at 
least  within  their  respective  states,  recognized  exceptions  to 
it.  Thus  it  has  been  said,  that,  where  a  statute  is  intended 
to  be  a  substitute  for  the  common  law  rule,  and  not  merely 
cumulative,  it  is  to  be  liberally  construed  in  accordance  with 
that  intention  ;"  and   in  Iowa  it  was  held  that  the  code 


81  Wilb.,  Stul.  L.  p.  21. 

88  See  Brown  v.  Barry,  3  Dall. 
365  :  Shaw  v.  R.  K.  Co.,  101  U.  S. 
557  ;  Burnside  v.  Whitney,  21  N. 
Y.  148  ;  Newell  v.  Wheeler,  48  Id. 
486  ;  Smith  v.  Moffat.  1  Barb.  (N. 
Y.)65;  Graliam  v.  Van  Wyck,  14 
Id.  531  :  Perkins  v.  Perkins,  03  Id. 
581  ;  Bussing  v.  Bushncll,  G  Hill 
(N.  Y.)  382;  Rue  v.  Alter,  5  Denio 
(N.  Y.)irJ;  Millard  v.  R.  R.  Co., 
9  How.  Pr.  (iN.  Y.)  238;  Melody  v. 
Reab,  4  Mass.  471  ;  Gib.soa  v. 
Jennv,  15  Id.  205  ;  Com'th  v. 
Knapp,  9  Pick.  (IVIass.)  496  ;  Wil- 
bur V.  Crane,  13  Id.  284 ;  Lord  v. 
Parker,  3  Allen  (Mass.)  127; 
Schuyler  Co,  v.  Mercer,  9  111.  20  ; 
Lock  V  Miller.  3  Stew.  &  P.  (Ala.) 
13  ;  Gunter  v.  Leekey,  30  Ala.  591; 
I-Iollmau  V.  Bennett,  44  Miss.  323  ; 
Stale  V.  Norton,  23  N.  J.  L.  33  ; 
Esterley's  App..  54  Pa.  St.  192; 
M'uUin  V.  McCreary,  Id.  230  ; 
Ilotaling    V.    Crouise,  2  Cal.   60  ; 


Sibley  v.  Smith,  2  Mich.  486;  State 
V.  VV'hcl-stone,  13  La.  An.  376 ; 
Crowell  V.  Van  Bebber,  18  Id. 
637  ;  Devclly  v.  Develly,  46  Me. 
377  ;  Sullivan  v.  La  Crosse,  etc., 
Co.,  10  Minn.  386;  Warner  v. 
Fowler,  8  Md.  25  ;  Tliislle  v. 
Coal  Co.,  10  Id.  129  ;  Stewart  v. 
Stringer,  41  Mo.  400  ;  Ilowey  v. 
JMllle'i',  67  N.  C.  459 ;  Bailey  v. 
Bryan,  3  Jones  L.  (N.  C.)  357; 
Young  V.  McKenzie,  3  Ga.  31  ; 
Hearn  v.  Ewin,  3  Cold.  (Tenn.) 
399. 

89  See  1  Kent,  Comm.  464,  and 
Bish.  Wr.  L.  §  155,  where  it  is  said 
that  "  statutes  in  derogation  of  the 
common  law,  or  of  a  prior  statute, 
are  construed  strictlv." 

90  See  |iost,  §  329." 

9'  See  Dewey  v.  Goodenough,  56 
Barb.  (N.  Y.)  54. 

9^  Hannon  v.  Madden,  10  Bush. 
(Ky.)  664. 


^  127]  SCOPK    AND    I'lTUPOSE    OF    ACT.  175 

was  intended  to  furnish  a  system  of  praetice  and  compact 
Jaw,  and,  when  in  derogation  of  the  common  law,  it  was  to 
be  liberally  construed  to  carry  out  the  object  of  that  sys- 
tem." And  so  in  some  instances  in  wliich  the  statutes 
under  construction  were  held  remedial,  e.  g.,  statutes  giving 
mechanics'  liens  ;'*  statutes  altering  the  legal  status  of  mar- 
ried women  ;"  and  in  the  case  of  a  statute  limiting  the  lia- 
bility of  ship-owners  in  respect  of  any  "  goods  or  merchan- 
dise whatever,"  where  that  phrase  was  construed  as  includ- 
iuff  baiTo-aofe."  But  in  general,  the  formula  of  the  rule,  at 
least,  in  the  sense  indicated,  has  been  adhered  to,  if  its 
application  has  been  somewhat  relaxed.  It  is  perhaps  sig- 
nificant that  in  England,  from  whence  this  rule  is  professed 
to  be  derived,"  it  was  said  in  a  recent  case,  that  the  fact  that 
a  statute  interferes  with  a  man's  common  law  rights  is  no 
reason  why  it  should  be  construed  differently  from  any 
other  act  of  Parliament."  The  "  enthusiastic  loyalty  to  a 
body  of  law,  the  most  peculiar  features  of  which  the  activity 
of  the  present  generation  has  been  largely  occupied  in 
uprooting  and  destroying,"*"  would  appear  to  have  its  prin- 
cipal professors  in  that  portion  of  the  world  in  which  it  is 
most  out  of  place.  It  is  submitted,  that,  as  a  rule  of  con- 
struction, in  the  sense  above  indicated,  the  formula  referred 
to  has  no  justification  as  applied  to  the  existing  common 
law,  any  more  than  as  applied  to  the  existing  statute  law. 
In  nearly  every  instance  in  which  it  has  been  invoked  to 
control  the  result  with  proper  effect,  the  same  end  would 
have  been  reached  by  a  little  diligent  search  for,  and  dis- 
criminating application  of,  other  rules  of  construction  which 
will' hereafter  appear,  and  under  which   those  cases  will  be 

*3  Kramer  v.  Rebman,  9  Iowa,  are    not    included    in     "personal 

114  goods,"  in  u  penal  act. 

9^Rnolianan  v.   Smith,  43  Miss.  »'  See  Sedi^^v.  p.  273. 

90  ;  Cliapin  V.  Per-ise,  etc.,  Works,  ^«  The   \Yark\vortli,  L.   R.  9   P. 

^50  Conn.  4G1  ;  Oster  v.  Rabeneau,  Div.    21.     alliimcd    in     Cnurl    of 

46  Mo.  595.  Appeals,     ll  is  also  noticeable  that 

95  C'orn  Exoh.  v.  Babcock.  43  N.  Judue    :\Iu.\weirs     learned    work 

Y.  613  ;  De  Vries  v.  Conkliu,  23  refers  in  no  place  to  the  doctrine 

Mich.  255.  that  statutes  in  derogalion   of  the 

s''  Chamberlain  v.  West.  Transp.  common    law    are    to    be  striclty 

Co.,44N.  y.  305.     But  see  U.  S.  construed,   as  a  rule  of  coustruc- 

V.  iOavis,  5  ]\[asou,  856,  that  choses  tion. 

in  action,  like  bonds,  bills,    etc.,  '^  Sedgw.  p.  373. 


170  SCOPE    AND   rCKrOSE    OF   ACT.  [§  12T 

cited  ;  and  in  tlie  remainder  of  the  cases,  signally  those  con- 
struing b}'  the  above  formula  statutes  enfranchising  married 
women,  the  result  has  been  wrong,  and  has  had  to  be  set 
right  by  subsequent  legislation.  But,  in  so  far  as  it  recog- 
nizes the  presumption  against  an  intention  to  change  the 
existing  law,  and  to  that  extent  only,  the  rule  is  accurate. 

[It  is  said  by  an  eminent  author  :  "  With  all  the  gross 
imperfection  of  the  common  law,  it  did  contain  certain 
grand  principles,  and  these  principles  had  been  worked  out 
into  many  practical  rules  both  of  primary  rights  and  of  proced- 
ure, which  protected  personal  rights,  rights  of  property,  of 
life,  of  liberty,  of  body  and  limb,  against  the  encroachments 
both  of  government  and  of  [)rivatc  individuals.  This  was  the 
great  glory  of  the  common  law.  Any  statutes  which  should 
take  away,  change  or  diminish  these  rights  should  be  strictly 
construed.  To  this  extent  the  rule  is  in  the  highest  degree 
valuable,  not  because  such  statutes  '  are  in  derogation  of 
the  common  law,'  but  because  they  oppose  the  overwhelm- 
ing power  of  the  government  to  the  feeble  power  of  resist- 
ance of  the  individual,  and  it  is  the  duty  of  courts,  under 
such  circumstances,  to  guard  the  individual  as  far  as  is  just 
and  legal,  or,  in  other  words,  to  preserve  the  individual  from 
liaving  his  ])ersonal  rights  taken  away  by  any  means  that 
are  not  strictly  legal."""  All  the  matters  here  enumerated 
are  covered  by  the  rules  forbidding,  except  in  clear  cases- 
(and  in  such,  it  is  conceded,  even  the  formula  "  in  deroga- 
tion," etc.,  would  have  to  give  way,"")  a  construction  which 
would  create  a  new,  or  destroy  an  existing,  jurisdiction  or 
remedy,  or  give  sunnnary  process,  and  the  rule  which  requires 
a  strict  construction  of  statutes  that  restrict  or  encroacli  upon 
rights,  impose  burdens  upon  persons  or  property,  or  confer 
exemptions,  privileges  or  powers.  As  to  all  other  statutes 
changing,  or  departing  from,  the  common  law,  the  same  rule 
applies  as  in  the  case  of  statutes  changing  a  statutory  rule, 
viz.  :  that  the  Legislature  is  not  presumed  to  intend  any 
alteration  beyond  the  immediate  objects  and  provisions  of 
the  enactment. 

""»  Scdgw.    p.   271,   note,   Pom-         »<>»  State  v.  Norton,  23  N.  J.  lu 
eroy.  33. 


I  128]  SCOPK    AND    PDIiPoSE    OF    ACT.  177 

§  128.  [To  the  cliiss  of  statutes  falling  under  this  rule 
belong  those  changing  the  rules  of  evidence,  or  permitting 
persons  to  be  witnesses  in  their  own  cases.'"  Thus,  where 
an  act  declared  that  no  '"  interest  or  policy  of  law"  should 
exclude  a  party  or  person  from  being  a  witness  in  any  civil 
proceeding,  it  was  held  that  a  married  woman  was  not  there- 
by made  a  competent  witness  to  bastardize  her  issue."* 
"When  we  come  to  consider,"  said  the  court,  "that  the 
'  interest  or  policy  of  law'  which  the  legislature  had  in  view 
in  passing  that  act,  was  that,  whicli,  before  that  time, 
excluded  parties  from  testifying  in  their  own  suits,  or 
where  they  had  an  interest  in  the  subject  matter  in  con- 
troversy, it  becomes  obvious  that  a  case,  such  as  the  one 
under  discussion  (an  appeal  from  the  order  of  justices 
removing  a  pauper  from  one  poor  district  to  another)  was 
not  in  the  legislative  mind  when  that  act  was  passed.  It. 
would,  therefore,  be  an  unnecessary  and  violent  construction 
of  the  statute  to  make  it  include  a  '  policy  of  law'  wholly 
different  from  that  under  contemplation  when  it  was 
framed.""'  Nor,  as  has  been  seen,  could  the  act,  which  was 
an  enlarging  one,  make  any  one  incompetent  who  was  com- 
petent before,'"^  as  little  as  the  provision  forbidding  a  woman 
to  make  a  contract  of  suretyship,  in  a  statute  whose  main 
purpose  was  to  enlarae  her  powers  over  her  property,  could 
abridge  her  common  law  right  to  mortgage  it  for  the  debt  of 
her  husband.""  On  the  other  hand,  where  the  purpose  of  a 
statute  relating  to  the  rights  and  powers  of  married  women 
over  their  property  was  merely  to  protect  the  same  against 
her  husband's  interference  and  creditors,  it  was  held  to  be  be- 
yond its  scope  to  confer  upon  her  any  power  or  capacity  to 
contract  which  she  did  not  possess  before,  or  which  was  not 
expressly  or  by  necessary  inference  given  her  in  the  act  ;'"■' 
and  this  although  the  act  was  recognized  to  be  an  eidarging 
and  enabling  one,  to  be  administered  in  the  spirit  of  the 


J02  See  "Warner  v.  Fowler,  8  Md.  ^"^  Ibid.,  at  p.  437. 

25;    Thistle  v.    Coal  Co.,    10  Id.  "s  gfc  ante,  §  124. 

129  ;  Hotalin?  v.    Cronise,  2  Cal.  '"«  See  ibid. 

60.  '"  Moore  v.   Cornell,  68  Pa.  St. 

"3  Tioga  Co.  V.  South  Creek  Tp.,  320. 
75  Pa.  St.  433. 

12 


178 


SCOPE    AND    PURPOSE  OF  ACT. 


[§129 


rights  enlarged  by  it.""]  And  so,  too,  where  the  effect 
of  such  a  statute  was  siuipl}'  to  assiinihite  wliatever  property 
ini'dit  accrue  to  a  married  woman  to  an  equitable  estate 
settled  to  her  use,  it  was  held  that  it  gave  no  legal  validity 
to  any  contracts  except  such  as,  untler  a  chancery  jurisdiction, 
■would  have  had  equitable  validity  ;  and  hence  as  a  matter 
^A  course,  that  it  was  beyond  its  scope  to  confer  upon 
married  women  who  possessed  no  property  a  right  to  make 
contracts  which  they  could  not  have  had  before.'"" 

[Other  statutes  belonging  to  this  class  are  such  as  allow  a 
judgment  debtor  to  pay  his  debt  to  the  shei'iff  in  discharge 
tliercof  ;""  changing  the  commercial  law,"'  and  the  like.] 

§  1'29.  Intent  as  an  Element  of  Crime — On  this  general  princi- 
])le  of  construction,  [that  the  operation  of  an  act,  though 
<;ouchcd  in  general  language,  is  not  to  be  extended  beyond 
the  immediate  purpose  it  is  designed  to  serve  or  accomplish, 
because  it  is  not  to  presume  that  the  law  is  designed  to  be 
changed  further  than  is  necessary  therefor,]  a  statute  which 
made  in  unquaHfied  terms  an  act  criminal  or  penal,  would  be 
understood  as  not  applying  where  the  act  was  excusable  or 
justifiable  on  grounds  generally  i-ccognised  by  law.  [Where 
tlie  language  of  the  eiuictment  indicates  its  applicability  only 
in  the  case  of  an  absence  of  excuse,  there  can  be  no  difficulty 


'«3  Bergey's  App.,  60  Pa.  St.  408, 
418. 

'«9  Eckert  v.  Pvciiter,  33  N.  J.  L. 
203  ;  Vankirk  v.  Skillinau,  34  Id. 
10!)  ;  Lewis  v.  Perkins.  36  Id.  133  ; 
Wilson  V.  HcM'bert,  41  Id.  454  ; 
Mather  v.  Brokaw,  43  Id.  587  ; 
Ileywood  v.  Siirecve,  44  Id.  94  ; 
MoVris  V.  Liudsley,  45  Id.  435  ; 
Bradley  v.  Johnson,  Id.  487;  46  Id. 
27  ;  Condon  v.  Barr  (N.  J.)  5 
Ceiitr.  Rep.  556.  Under  the  Eng- 
lish Married  Women's  Property  Aet 
of  1883;  45  &  40  Viet.  c.  75,  s.  1. 
sub.  s.  2,  permitting  a  married 
woman  to  bind  herself  by  her  con- 
tracts "  in  respect  of  and  to  the  ex- 
tent of  her  separate  properly  "  it  is 
lield  that  her  ownership  of  sejiarate 
property  at  tiie  time  of  making  the 
contract  is  essential  to  its  validity 
as  against  her:  Palliser  v.  (luruey, 
L.  II.  19  Q.  B.  D.  519.  And  see 
In  re  Shakcspear,  Deakiu  v.  Lakin, 


30  Ch.  D.  169.  See  to  similar 
effect,  under  an  act  making  a  judg- 
ment obtained  auainst  a  married 
woman  recoverabh!  only  out  of  her 
separate  estate,  Offutt  v.  Dangler, 
(D.  C.)  5  Centr.  Kep.  430;  and  see 
Leinbach  v.  Terai)lin,  105  Pa.  St. 
522;  Spering  v.  Laugblin,  113  Id. 
209.  But  comp.  Frecking  v.  Holl- 
and, 53  N.  Y.  422;  Ackley  v.  Wes- 
leivelt,  80  Id.  448;  Tiemeyer  v. 
Turnquist,  85  Id.  510;  Adams  v. 
Curlis,  4Laus.  (N.  Y.)  164;  Speck 
V.  Gurnee,  25  llun  (N.  Y.)  044; 
('ashman  v.  Henry,  75  N.  Y.  103; 
Cramer  v.  Ilauaford,  53  Wis.  85; 
Tallmau  v.  Jones,  13  Kan.  438, 
and  also  Zuru  v.  Noedel,  113  Pa. 
St.  336. 

"0  llowey  V.  Miller,  67  N.  C. 
459. 

•n  Crowell  v.  Van  Bebbcr,  18 
La.  An.  637. 


g  1  20]  SCOPE  AND  rUUPOSE    OF    ACT.  I7l^ 

in  limitiiii,'  its  scope  and  consequent  operation  to  such 
instances.  Thus  it  lias  been  lield,  that,  to  "  sujffer  "  a  ram 
to  go  at  hirge,  or  out  of  tlie  owner's  enclosure,  implies  con- 
sent or  willingness  on  the  latter's  part  ;""  and  that  a  penalty 
imposed  for  "  suffering  "  hogs  to  run  at  large  is  incurred  only 
where  they  arc  voluntarily  suffered  so  to  do,  and  not  where 
they  escape  from  the  owner  Avithout  his  default.'"  But  in 
the  absence  of  such  an  indication,]  a  statute  which  imposed 
throe  months'  imprisonment  and  the  forfeiture  of  wages  on 
a  servant  wdio  "absented  himself  from  his  service"  before 
his  term  of  service  was  completed,  would  necessarily  be 
understood  as  confined  to  cases  where  there  was  no  lawful 
excuse  for  the  absence  {a).  A  Statute  which  made  it  felony 
"  to  break  from  prison,"  would  not  apply  to  a  prisoner  who 
broke  out  from  the  prison  on  fire,  not  to  recover  his  liberty, 
but  to  save  his  life  {h)  :  and  one  which  declared  it  piracy  to 
"  make  a  revolt  in  a  ship,"  would  not  include  a  revolt 
necessary  to  restrain  the  master  from  unlawfully  killing- 
persons  on  board  (<?),  even  if  it  could  be  justly  called  a  revolt. 
And  a  seaman  would  not  be  guilty  of  "  deserting,''  who  was 
driven  by  the  cruelty  of  his  officers  to  leave  his  ship  {d). 
The  sheriff  who  arrests  under  a  warrant  the  driver  of  the 
mails,  is  not  indictable  for  knowingly  and  willfully  obstruct- 
ing and  retarding  the  mail  {e).  [And,  where  a  statute  gave 
trel)le  damages  against  any  person  who  should  commit  waste 
■on  land,  pending  a  suit  for  its  recovery,  it  was  held  that  the 
act  did  not  apply  to  a  ])arty  wholly  ignorant  of  the  fact  that 
a  suit  was  pending,  on  the  ground  that  the  statute  should  be 
•limited  to  the  object  the  Legislature  had  in  view."*  Simi- 
larly,   statutes   giving  punitive,  double  or  treble,  damages 

"2  Selleck  v.  Selleck,  19  Conn.  Steed  v.  McRae,  1  Dev.  &  B.,  L. 

501.     And   see   Hall  v.  Adams,  1  (N.  C.)  435.] 

Aik.  (Vt.)  166  ;  2  Id.  130.  (6)  2  Inst.  590. 

113  CoMi'lh  V.  Fourteen  Hogs,  10  (c)  11  &  12  Wm.  3,  c.  7.  s.  9  ;  R. 

Sersr.  &  R.  (Pa.)  393.  v.   Rose,  2  Cox,   329  ;  The  Shep- 

(a)  4  Geo.    4,   c.    34,   8.    3  ;    lie  berdess  5  Rob.  206. 

Turner,  9  Q.   B.  80.     See  also  21  ((/)  Edward  v.  Trevellick,  4  E.  & 

Hen.  8,  c.  13,  Gibs.  Cod.  887.     [So  B.  59. 

it  was  held  that  act  1741,  oh.  35.  (e)  U.  S.    v.   Kirby,  7  "Wallace, 

§   22,    ISorth    Carolina,    does    not  482. 

impose  a  penalty  where  an  over-  "*  Reed  v.  Davis,  8  Pick.  (Mass.) 
seer  is  entitled  to  leave  by  his  con-  516.  See  ante,  §  119  ;  and  corn- 
tract,   or  may  be  turned    away  :  pare,  post,  §  132. 


ISO  SCOPE  AND    PUUPOSE  OF  ACT.  [§   130' 

ao-ainst  one  cuttincr  and  converthiij^  to  his  own  use  timber- 
o-rowing  on  the  land  of  anotlicr,  without  the  hitter's  consent, 
are  held  confined  to  cases  where  some  element  of  wilfulness, 
wantonness,  carelessness,  or  evil  design  enters  into  the  act,'" 
and  do  not,  therefore,  include  the  case  of  a  corporation  enter- 
ii)(>-  upon  the  lands  of  another  and  taking  timber  trees  under 
a  right  of  eminent  domain  ;""  and  this  although,  in  conse- 
quence of  the  failure  of  the  company  to  give  bond  or  make 
compensation  as  required  by  statute,  the  taking  of  the  land 
was  a  trespass.'"] 

§  130.  Incapacity,  etc.— A.S  mens  rea,  or  a  guilty  mind,  is, 
with  few  exceptions,  an  essential  element  in  constituting  a 
breach  of  the  criminal  law,  a  statute,  however  comprehen- 
sive and  unqualitied  it  be  in  its  language,  is  usually  under- 
stood as  silently  requiring  that  this  element  should  be  im- 
ported into  it,  unless  a  contrary  intention  be  expressed  (a). 
[It  is,  indeed,  said,  that,  where  the  intent  to  do  a  forbidden 
thino-  is  wanting,  a  person  commits  no  offence  in  law, 
although  he  does  that  which  is  completely  within  all  the 
words  of  a  statute  which  prohibits  it,  and  which  is  silent 
concerning  the  intent."']  A  statute,  for  instance,  which  in 
general  terms  enacted  that  every  person  who  committed  a 
certain  act  should  be  adjudged  a  felon,  would  not  include  a 
child  under  seven,  or  an  idiot,  or  a  lunatic  during  the  loss  of 
his  reason  (5),  or  a  man  in  a  state  of  mental  insensibility 
caused  by  intoxication  (o)  ;  for  it  would  be  unreasonable  to 
infer  from  the  mere  use  of  an  unqualified  term,  an  intention 
to  repeal  the  general  principle  that  such  persons  are  not 
capable  of  a  criminal  intention.  [In  all  cases  in  which  the 
statute  makes  the  intention,  as  well  as  the  act,  an  integral 
part  of  the  crime,  the  question  of  intoxication  is  material,  in 

"5  Cnhn  V.  Neeves,  40  Wis,  not  witkin  this  rule  :  U.  S.  v. 
;593  •  Kramer  v.  Goodlander,  98  Tiiomasson,  4  Biss.  09.  A  con- 
Pa  St.  'S~)'6.  363.  struction,  however,  which  would 
'"«Beihlehcm,  etc.,  Co.  V.  Yoder,  make  a  man  guilty  legardless  of 
112  Pa  St  136.  See  also  Justice  the  question  of  intent,  is  not  to  be 
V.  R.  li.  Co..  87  Id.  28.  preferred  :  Bradley   v.   People,    8 

'"  See  eases  in  preceding  note.  Col.  599. 

(a)  See  ex.  gr.   R.  v.  Harvey.  L.  (b)  1  Hale,  706  ;  Eyston  v.  Studd, 

R   IC   C    11.  t'84.  Plowd.   465;  Bac.  Ah.   Stat.  I.  6. 

'•"*  State  V.' Gardner,  5  Nev.  377.  See  Exp.  Stamp,  De  Gex,  345. 

But  it  is  said  that  penal  statutes  (c)  R.   v.  Moore,  3  C.  &  K.  319. 
uot    authorizing    indictments    are 


§  131]  SCOPE    AND    PURPOSE  OF  ACT.  181 

order  to  test  the  accused's  capacity  to  decide  between  right 
and  wrong."'  Thus,  hirceny  involves  a  felonious  intent, 
and  if  one  who  takes  ])rc)perty  is  too  drunk  to  have  any  in- 
tent, he  is  not  guilty  thereof.""] 

§131.  Acts  done  in  Assertion  of  Right.— Again,  an  act  done 
in  the  honest  assertion  of  a  right  which  would  be  good  in 
law  if  well  founded  in  fact,  but  which  proves  unfounded  in 
fact,  would,  for  the  same  reason,  not  fall  within  a  statute 
which  prohibited  it  under  a  penalty ;  unless,  indeed,  the 
penalty  was  in  the  nature  simply  of  compensation  for  a  civil 
injury  (a).  So,  if  a  man  cut  down  a  tree  or  demolished  a 
house  standing  on  land  of  which  he  was  in  undisturbed  pos- 
session, and  believed  himself  to  be  the  owner,  he  would  not 
"be  punishable  under  Statutes  which  prohibited  such  acts  in 
general  terms  ;  thougli  it  turned  out  that  his  title  was  bad 
and  the  property  was  not  his  {h).  [So,  an  entry  on  the  land 
of  another,  under  a  bona  fide  claim  of  right,  e.  g.,  by  an  em- 
ploye of  a  railroad  company,  ordered  to  fell  trees  on  land 
conveyed  to  the  company,  adjacent  to  its  track,  was  held  not 
to  be  a  criminal  offense  under  the  laws  of  North  Carolina."'] 
If  one  demanded  goods  with  threats,  bona  fide  believing  that 
they  belonged  to  him,  he  would  not  be  guilty  of  robberj', 
though  civilly  liable  (c).  [So,  when  a  party  bought  cotton 
of  a  firm,  which  was  stored  in  certain  houses,  and,  in 
removing  it,  carried  off  cotton  belonging  to  the  firm  in  an- 
other house,  openly,  and  under  a  claim  of  right,  as  a  party 
of  the  trade,  such  taking  was  lield  not  to  be  a  felony.*"]  If 
one  forcibly  took  a  girl  under  sixteen  from  the  custody  of 
her  guardian  in  the  honest  but  mistaken  belief  that  he  was, 
himself,  invested  with  that  character,  and  acted  simply  in 
the  exercise  of  his  right  as  guardian,  he  would  not  be  guilty 
of  the  criminal  offence  of  abduction,  though  that  is  defined 

"9  Wenz  V.  Slate,  1  Tox.  App.  '^^  State  v.  Crosset.  81  N.  C.  579. 

36.  But  as  to  mere  belief,  after  waru- 

i'"'  People  V.  Walker,  38  Mich,  iuir,  see  State  v.  Brvsou,  Id.  595. 

156.     See  also,  Ilopt  v.  llopt,  104  \c)  R.    v.  Hale.    3  C.   &  P.   409. 

U.  S.  6;J1  ;  Nevliiig  v.  Coin'th,  98  See   also   and   comp.    K.  v.    Crid- 

Pa.   St.  323  ;  Smitli  v.  Wilcox,  47  land.  7  E.  eVs  B.  853,  27  L.  J.  M.  C. 

Yt   537  2«7.    and     Mordeu     v.     Porter,    7 

(a)  See  ex.  gr.  Lee  v.-  Simpson,  C.H.  N.S.  041  ;  29  L.J.  M.C.  213. 

3  C.  B.  871.  '"'  Newton      !Mauuf'g      Co.    v. 

(5)  K.  V   Burnaby.  2  Lord  Raym.  White,  03  Ga.  097. 
900. 


182  SCOPE    AND    I'URPOSE    OF    ACT.  [§  \B2 

as  "  unlawfully  taking  a  girl  under  sixteen  out  of  the  pos- 
session and  against  the  will  of  the  person  having  the  law- 
ful care  of  her"  {a).  A  man  who  fished  in  a  tidal  river,  in 
the  assertion  of  the  general  right  which  the  law  gives  to  fish 
in  such  rivers  (6),  and  in  ignorance  or  in  contestation  of  the 
exclusive  right  of  fishing  in  it  claimed  by  another,  would 
not  be  liable  to  conviction  of"  unlawfully  and  wilfully" 
fishing  in  the  private  fishery  of  another  (<?). 

§132.  Ignorance  as  a  Defense. — But  how  far  ignorance  or 
erroneous  belief  of  a  fact  which  is  essential  to  the  offence  is 
material,  is  a  (piestion  which  has  given  rise  to  some  contro- 
versy and  conflict  of  decisions.'"^  It  seems  that  where  the 
act  done  is  one  prima  facie  or  usually  lawful,  calling  for  no 
explanation  or  excuse,  and  is  unlawful  only  under  excep- 
tional circumstances,  ignorance  or  erroneous  belief  regard- 
ing those  circumstances,  is  to  be  regarded  as  establishing  the 
absence  of  mens  rea  {d).  Where  a  railway  Act  which  •■'  for 
the  btjtter  j^revention  of  accidents  or  injury  which  might 
arise"  on  the  railway  "from  the  unsafe  and  improper  car- 
riage of  certain  goods,"  enacted  that  every  person  who 
should  send  gunpowder  or  similarly  dangerous  articles  by 
the  railway  should  mark  or  declare  their  nature,  under  a 
penalty  enforceable  by  imprisonment,  it  was  held  that 
guilty  knowledge  was  essentinl  to  a  conviction,  and  that  an 
agent  who  had  sent  some  cases  of  dangerous  goods  by  a 
railway,  without  mark  or  declaration,  not  only  in  ignorance 
of  their  iiaturc^,  but  misinformed  of  it  b}'  his  ])rincij)al  in 
answer  to  his  inquiries,  had  not  incurred  the  ]ienaltv  ;  on 
the  ground  that  his  ignorance,  under  such  circumstances 
proved  the  absence  of  mens  rea  (e)  ;  and  yet  he  was  under 
no  legal  duty  to  send  the  goods,  and  he  might  have  refused 
to  do  so  without  actual  inspection.  A  similar  conclusion 
was  come  to  where,  although  there  was  no  knowledge,  there 
were  means  of  knowledge  which  were  neglected.    Under  the 

(a)  R.  V.  Tinkler,  1  F.  &  F.  51;j.  {,!)  See    R.    v.    Speed,     1     Lord 

(h)  Carter    v.    Murcot,    4   Burr.  R:iym.  583  ;   R.  v.  Burnaby,  2  Id. 

2103.  000  ;   Lec:g  v.  Pardee,  9  C.  B.  N. 

(c)  R.   V.    Stimpson.    4  B.    &  S.  S.  2«y  ;  Barton  v.  R.,  2  Moo.  P.  C. 

301,   32  L.  J.  2U8.     See  supra,    t^  1!;. 

119.  (fi)  Ileane  v.    Garton,    2  E.  «&  E. 

''3  See  §  129.  G6. 


§132] 


SCOPE    AND    I'URPOSE    OF    ACV. 


183 


9  &  10  Wm.  3,  c.  14,  wliicli  after  reciting  that  convictions 
for  embezzling  government  stores  were  found  impractic- 
able, because  direct  proof  of  the  immediate  taking  could 
rarely  be  made,  l)ut  only  tiiat  the  goods  were  found  in  the 
possession  of  the  accused,  and  that  they  bore  the  king's 
mark,  enacted  that  the  person  in  whose  possession  goods  so 
marked  should  be  found,  should  forfeit  the  goods  and  200/., 
unless  he  produced  at  the  trial  an  official  certificate  of  the 
occasion  of  their  coming  into  his  possession,  it  was  held  b}* 
the  Court  for  Crown  cases  reserved,  that  such  a  person  was 
not  liable  to  conviction,  in  the  absence  of  proof  that  he 
knew  (though  he  had  reasonable  means  of  knowing,)  that 
the  goods  bore  the  government  mark  {a).  [So,  where  a 
statute  subjected  the  master  of  a  steamboat  to  a  penalty  foi* 
failing  to  deliver  any  letter  that  he  should  have  ''  in  his  care 
or  within  his  power,"  it  was  held  that  there  must,  in  order 
to  guilt,  be  knowledge  on  his  part,  and  that  the  mere  posses- 
slon  of  the  letter  by  the  clerk  of  his  boat  was  not  enough.'"'] 


(«)  R.  V.  Sleep,  1  L.  &  C.  44 ;  30 
L.  J.  M.  C.  170  ;  K.  v.  Wilmett,  8 
Cox,  281  ;  II.  V.  Coheu,  8  Cox,  41. 
This  decision,  however,  might  be 
questioned,  on  the  uutliority  of 
unolber  case,  which  was  not  cited, 
where  the  Court  of  Exchequer  held 
that  a  dealer  in  tobiicco  was  liable 
to  the  penalty  imposed  by  the 
Statute  for  having  adulteiiitod  to- 
bacco iu  his  possession,  i  hough 
ignorant  of  the  adulteration.  (5 
«&  G  Vict.  c.  9o  ;  R.  v.  "Woodrow, 
15  M.  &  W.  404.  See  also  per 
Parke,  B..  inBumby  v.  Bollett,  16 
M.  &  W.  644  ;  R.  v.  Trew,  2  East. 
P.  C.  821  ;  R.  V.  Dixon,  3  M.  &  S. 
11,  4  Camp.  12.)  It  may  be  doubted 
whether  tlie  literal  construclion  ot 
the  language,  enforcing  viui'ance 
for  the  prolecdon  oC  the  jmbbc 
from  danger  or  robbery,  by  visiting 
negligence  (com p.  R.  v.  Stephens^ 
and  R.  v.  Walter,  cited  infra,  jj;  135) 
as  well  as  misdeed  with  penal  conse- 
quences, would  not  havebeenmore 
in  harmony  with  the  intention,  and 
have  more  completely  promoted 
the  object  of  the  Legislature.  Sec 
Aberdare  v.  Hammett,  L.  R.  10  Q. 
B.  162  ;  also  a  case  reported  only 
in  the  Law  Times,  where  a  person 
"  found  in  possession  of  the  young 


of  salmon."  in  contravention  of  the 
Salmon  Fisheries  Act,  24  &  25 
Vict.  c.  109,  s.  15,  was  held  not 
liable  to  conviction,  who,  though 
he  knew  he  was  in  po.ssession,  did 
not  know  the  fish  were  salmon  : 
Ilopton  v.  Thirlwall,  9  L.  T.  N. 
S.  327.  [But  see  State  v.  Probasco, 
62  Iowa, 400, where,  under  a  statute 
making  it  unlawful  for  the  keeper 
of  a  billiard  hall  "to  permit  any 
minor  .  .  to  remain  in  such  hall," 
a  keeper  might  be  convicted  witli- 
out  proof  that  he  knew  of  the  pres- 
ence of  a  person  w^ho  was  a  minor, 
or  the  fact  of  such  person's  being  a 
minor.  In  Jamison  v.  Burton,  43 
Iowa  282,  the  sale  of  intoxicating 
liquors  to  a  minor  was  held  to  be 
an  oll'ence,  although  the  .seller  did 
not  know  that  the  buyer  was  a 
minor,  —  cit.  State  v.  iiatlield,  24 
Wis.  60.  But  see  contra,  Miller  v. 
State,  3  Ohio  St.  475.] 

'-•*  U.  S.  V.  Beaty,  Hemps.  487. 
Sec  also,  as  to  wlieu  knowledge  is 
necessary  to,  and  ignorance  a  relief 
from,  liabilty  :  Barlow  v.  U.  S.,  7 
Pet.  404  ;  Giitner  v.  Gorham,  4 
McLean,  402;  U.S.  v.  Taylor,  5  Id. 
242  ;  Lee  v.  Lacey,  1  Crauch  0.  Ct. 
263. 


184  SCOPE    AND    PUKPUSK    OF    Acr.  [§  133 

§  133.  On  the  other  hiiiid,  wliere  the  act  done  is  in  its 
nature  a  breach  of  the  hiw  by  the  person  who  does  it,  and 
is  divested  of  that  character  only  wlien  a  certain  fact 
exists,  the  person  who  does  the  act  in  ignorance  of  that 
fact,  or  in  erroneous  belief  respecting  it,  cannot  be  said 
to  do  it  innocently,  and  is  not  excused  by  his  igno- 
rance or  mistake.  Thus,  a  married  woman  who  married 
a  second  husband  would  be  guilty  of  bigamy,  though  she 
honestly  believed  that  the  first  was  dead  {a).  So,  the 
offence  of  unlawfully  taking  a  girl  under  sixteen  out  of  the 
possession  and  against  the  will  of  her  parents,  would  be 
committed,  although  the  offender  believed,  from  her  appear- 
ance and  asseverations  contrary  to  tlie  fact,  that  she  was 
older  {!)).  [And  under  an  act  making  it  an  indictable  misde- 
meancr  to  obstruct  any  public  road,  the  intent  was  held  to  be 
immaterial,'"]  If  ignorance  or  mistaken  belief  in  such  cases 
disproved  the  mens  rea,  a  man  indicted  for  barglaiy  would 
be  entitled  to  an  acquittal  on  proof  that  when  he  broke  into 
the  house,  he  wrongly  believed  it  was  past  (5  a.  m.  (c).  It  was 
lield,  that  an  Act  which  punishes  an  assault  on  a  police  officer 
"in  the  execution  of  his  duty,"  was  broken  by  a  person  who 
assaulted  an  officer  so  engaged  in  ])rivate  clothes,  ignorant 
that  he  was  an  officer  {d).  The  offence  of  receiving  two  or 
more  lunatics  in  an  unlicensed  house  is  committed,  though  the 
persons  were  received  in  the  belief,  based  on  reasonable 
grounds,  that  they  were  not  lunatics  (<?).  Under  the  special 
Act  which  empowered  a  gas  company  to  make  the  necessary 
works  for  its  business,  subject  to  a  penalty  if  it  should 
"  suffer  any  washings  to  be  conveyed  or  to  flovsr  "  into  any 
stream  or  place,  corrupting  or  fouling  the  water,  the  com- 
pany was  held  liable  to  the  penalty  in  a  case  where  the 
washings  percolated  through  the  bottom  of  its  gas  tank  and 
polluted  a  well  without  the  knowledge  of  its  servants  {f.) 

(a)  24  &  25  Vict.  c.  100  ;  R.  v.  (c)  Per  Bramwell,  B.,  in  R.  v. 
Gibbons,  12  Cox,  2o7,  overniliii<j     Prince,  ubi  sup. 

R.  V.  Ilorton,  11  Cox,  145,  G70.  (d)  2  &  3  Vict.  c.  47,  8.  18 ;  R.  v. 

(b)  11.  V.  Prince,  L.   li.   2   C.    C.      Forbes,  10  Cox,  3G2. 

154.      See   also   11.    v.    Olifier,   10  (e)  8  &  U  Vict.  c.  100.  s.   44;   R. 

Cox,  402 ;   R.  v.  Mycock,  13  Cox.  v.  Bisliop,  5  Q.  B.  D.  259. 

28  ;   R.  V.  Bootli,   Id.  231 ;   R.  v.  (/)  Ilipkins  v.  Birmiu^^bivm  Gas 

Robins,  1  C.  &  K.  456.  Co.,  G  II.  &  N.  43,  30  L.  J.  Ex.  60. 

'"McKibbin   v.   State,   40   .\rk.  [And  see  ante,  S  132.1 
480. 


^  134:]  SCOPE    AND    I'UKl'O.-K    OF    ACT.  185 

§  IS-i.  There  is  another  chis8  of  cases  where  the  absence 
of  mens  rea  does  not  contrul  the  huigwage  of  a  Statute  ;  and 
that  is  where  tlie  offence  has  been  coniniitted  in  ignorance 
or  misapprehension  of  the  law,  and  the  Statute  prohibiting 
the  act  does  not  expressly'  make  malice  or  wilfulness  or 
other  intent  an  essential  element  of  the  offence  (a).  [In 
o-eneral,  where,  by  common  law,  or  statute,  the  doiiig  of  a 
thing  is  forbidden,  the  doing  of  it  wilfully,  though  without 
i\\\y  corrupt  motive,  is  indictable  ;'"^  and  where  a  statute  does 
not  require  the  acts  declared  by  it  punishable  to  have  been 
done,  in  order  to  be  so,  knowingly,  and  they  are  not  malum 
per  se,  nor  infamous,  but  only  wrong  because  prohibited,  a 
criminal  intent  need  not  be  proved,  the  offender  being 
bound  to  know  the  law  and  obey  it  at  his  peril.'"]  A  man 
who  unlawfully  fished  in  a  non-tidal  river,  or  trespassed  on 
land  in  search  of  game,  would  not  escape  conviction  because 
he  honestly  believed  that  the  public  was  entitled  to  fish  or 
shoot  there  {h) ;  such  a  right  not  being  known  to  the  law. 
An  apprentice  who  absented  himself  from  his  master's 
service,  did  not  escape  the  penal  consequences  by  proving 
that  he  had  done  so  in  the  honest  though  erroneous  belief, 
founded  on  his  lawyer's  advice,  that  his  indentures  were  void, 
and  that  he  was  consequently  at  liberty  to  leave  his  service  (c). 
So,  a  cabman  who  persists  in  placing  his  cab  on  the  premises 
of  a  railway  company,  after  being  requested  to  remove  it,  is 
penally  liable  for  "wilfully  trespassing  and  refusing  to 
quit,"    though     he    M-as    under  the   persuasion,  which    was 

{a)  See  Ellis  v.  Kelly,  6  H.  &  N.  Morris  v.  People,  3  Deuio  (N.  Y.) 

223,  30  L.  J.  M.  C.   85  ;  Dauiel  v.  3Sl. 
Jones,  2  C.  P.  D.  351.  {h)  Iluilson  v.  McRae,  4  B.  &  S. 

'"  People  V.  Norton,  7  Barb.  (N.  585,  33  L.  J.  M.  C   C5  ;    Lcatli  v. 

Y  )  477  ;  and  see  People  V.  Bo2:art,  Vine,   30   L.  J.   ]\1.   C.    207;    llar- 

3  Park.  Cr.   (N.  Y.)  153  ;  3  7vbb.  greaves  v.    Dlddams.   L.  11.  10  Q. 

Pr.  1<J3  ;   U.  S.   v.  Adams,  2  Dak.  B.  582;   Walkins  v.  Major,   L.  11., 

305.  10  C.  P.  062.      See  also  The  Char- 

J"  U.  S.  V.  Leathers,  6  Sawyer,  lotla,  1  Dods.  887. 
17  ;  and  see   Smith  v.  Browii,    1         (c)  4  Geo.  4,  c.  34,  s.   3  ;   Cooper 

Wend.  (N.  Y.)  231.      That  a  man.  v.  Simmons,  7  11.  ct  N.  707,  31  L. 

at  least  in  a  civil  matter,  need  not  J.  M.  C.   138,  overruling  Buler  v. 

know  the  law  of   his   State   better  Wood,  29  L.  J.  M.  C.   1.     See  also 

than  its  Supreme  Court,  see  Geddes  Willelt  v.  Boote,  0  H.  &  N,  26,  30 

V.  Brown,  5  Phila.  (Pa.)  180,  ante,  L.  J.  JNI.  C.  6  ;  and  Youle  v.  Map- 

I   1,   note  1.     Comp.   post,  §  130  :  pin,  30  L.  J.  M.  C.  234.  0  II.  &  A'. 

753. 


186  SCOPE  AM)  J'UKPOSK  OF  ACT.  [§  135 

unfoundecl,  that  tliere    existed    a  legal    right  to    place  his 
vehicle  there  (a). 

§135.  Liability  of  Master  for  Servant's  Act.— The  principle 
that  mens  rea  is  essential  to  criminality  is  subject,  in  sonie 
classes  of  niisdenieanors,  and  especially  in  cases  of  libel 
and  nuisance,  to  the  more  general  one  which  makes  a  master 
responsible  for  the  wrongful  act  or  default  of  his  servant  in 
the  course  and  within  the  scope  of  his  employment,  when 
the  servant  is  not  forced  upon  him  by  law,  and  the  work  on 
which  he  is  employed  is  for  the  employer's  private  advantage 
or  profit,  and  not  in  the  discharge  of  a  public  duty  (5). 
[Thus,  where  liquor  was  sold,  or  a  gaming  table  kept,  in  vio- 
lation of  law,  by  an  agent,  the  employer  was  held  liable  to 
the  penalt}'.'''*]  In  such  cases,  the  act  of  the  servant,  though 
not  in  obedience,  and  even  contrary  to  his  master's  orders,  is 
yet  taken  to  be  the  act  of  the  master,  and  the  latter  has  in 
some  of  such  cases  been  held  penally  responsible  for  it, 
though  personally  ignorant  of  its  committal.  Thus,  a  baker 
has  been  held  liable  to  a  penalty  for  selling  bread  in  which 
his  servant  had,  without  his  knowledge,  mixed  alum  (c). 
The  owner  of  works  carried  on  by  his  agents  and  workmen 
for  his  profit,  was  held  indictable  for  a  nuisance  committed 
by  them  in  the  course  and  within  the  scope  of  their  employ- 
ment, although  they  had,  in  committing  it,  acted  against  his 
orders  {d).  So,  newspaper  proi)rietors  have  been  repeatedly 
held  indictal)lo  and  punishable  by  fine  and  imprisonment 
for  a  libel  of  which  they  had  no  knowledge,  inserted  by  their 
editor  and  sold  by  their  publisher  in  their  paper  (e).     It  has 

(a)  Foulger  v.  Steadmaii,  L.  II.  8  Sec  Parsons  v.  St.  Matthews,  L.  1?. 
Q.  B.  65.  Comp.  Joues  v.  Tavlor,  3  C.  P.  50  ;  Wilson  v.  llalilii.v,  L. 
1  E.  &  E.  20.  "  R.  ;}  Ex.  114  ;   Miillins  v.   Collins, 

(b)  Seethe  cases  collceteil  in  L.  R.  !)  Q.  B.  2l):3.  [But  see  iN  oil 
Ilolliday  v.  St.  Leonard.  11  O.  B.  v.  Slate.  M  Ala.  262  ;  Mitchell  v. 
N.  S.  l'J2,  30  L.  .1.  361;  llarlnail  v.  Minis,  8  Te.x.  6  ;  State  v.  Bacon, 
Ryde  Commissioners,  4  B.  &  S.  40  Vt.  456,  to  the  cllect  that  a 
3(51,  33  L.  J.  39  ;  Ohrbv  v.   Id.,  5  principal  is  not  liable  for   llu!  act 

B.  &  S.  743,  33  L.  J.   2i)6  ;  Coe  v.      of  his   agent   without   his  express- 
Wise,  5  B.  &  S.  440,  33  L.  J.  281  ;      authority.] 

Tobin  V.  Reg.  33  L.  J.  19<J,  204.  16  (d)  R.  v.  Stepliens,   1   Q.  B.  792; 

C.  B.  N.  S.  310.      See  also  Davies  and   see   Tuberville    v.    Stamp,    1 
V.    Harvey.    L.    R.    9   Q.    B.    433;  Lord  Raym   264,  CJarth.  425. 
Stanley  v.  Dodd,  1  D.  >Sc  R.  184.  {>')  R.  v.  Waller,  3  Esp.  21;  R.  v. 

i'^«  IJ.  S.  V.  Voss,  1  Cranch  C.  Gutch,  M.  &  M.  413  ;  R.  v.  Cut- 
Ct.  101  ;  U.  S.  V.  Conner,  Id.  102.        hell,    Erskine's   Speeches,    Vol.  5. 

(c)  R.   V.  Dixon,  3  M.    ifc   S.  11.      See   Scarlett's  Argumc'it  in  R.  v. 


§  136]  SCOPE  AND  purposp:  of  act.  187 

been  said  that  the  principal  or  master  is  liable  in  such  cases, 
because  lie  supplies  the  concern  with  the  capital  and  reaps 
the  profits  (a).  At  all  events,  he  carries  on  a  business  in 
which  wrongful  acts  may  be  and  even  are  apt  to  be  com- 
mitted by  his  agents  and  servants  over  whom  he  has  absolute 
control,  and  whom  therefore  he  can  by  the  exercise  of  due 
diligence,  prevent  from  doing  wrongful  acts;  and  his  igno- 
rance is  the  result  of  negligence  (b). 

§  136.  Mens  Rea  and  Guilty  Mind.— It  is  necessary,  as  regards 
mens  rea,  not  to  confound  a  guilty  mind,  in  the  legal  sense 
of  the  expression,  with  a  guilty  consci(Mico  or  evil  intention. 
A  statute  v/hich  prohibited  an  act  would  be  violated,  though 
the  act  were  done  without  evil  intention,  or  even  under  the 
influence  of  a  good  motive.  Thus,  a  man  who  sells  an 
obscene  publication  is  subject  to  the  penalty  imposed  on 
that  act  by  the  20  &  21  Vict.  c.  83,  although  his  object  was 
not  to  deprave  the  mind  of  the  reader,  but  to  expose  the 
tenets  of  a  religious  sect  (c).  The  master  of  a  ship  who, 
under  general  instructions  to  complete  his  cargo  on  the  best 
terms,  traded  with  the  enemy,  would  be  guilty  of  the  crime 
{d)  of  barratry,  though  he  acted  solely  under  the  motive  of 
serving  his  employer  to  the  best  advantage  (e).  A  railway 
company  which  had  suffered  a  weighing  machine  in  its 
possession  to  continue  out  of  repair  for  a  fortnight,  so  that 
it  indicated  more  than  the  true  weight,  was  held  to  fall 
within  the  enactment  which  imposed  a  penalty  for  being 
found  in  possession  of  a  weighing  machine  incorrect  or 
otherwise  unjust ;  although  its  servants  had  orders  to  make 
a  due  allowance  for  the   defect,    when    using   it  (/).     [So, 

Burdett,  given  ia  his  Life  by  his  (5)  In   this   resjicct,  indeed,  it  is 

son,  App.  p.  :!21.     As  regards  the  remarkable  thai  the  criminal  liabil- 

present  liabllily  of  ne\vspai)er  pro-  ity  is  more  exleiisive  than  the  civil, 

pvietors,  see  6  *&  7  Vict.  c.  !)6,  s.  7,  See  per  liyles,  J.,  in  Parkes  v.  Pres- 

and   n.   V.  llolbrook,    3   Q.  B.  D.  colt,  L.  K.  4  Ex.  182. 

60,  47  L.  J.  Q.  B.  35.  {c)  K.  v.  llicklin.  L.  R.  3  Q.  B. 

(a)  Per  Lord  Tentcrden  in  11.  v.  .360  ;  Steele  v.  Brannan,  L.  R.  7  C. 

Glitch,  ubi   suji.  Comp.  The  New-  P.  261. 

port.  10  Moo.  lo5.  [But  see  Com'th  ((/)  Vallejo    v.    Wheeler,   Cowp. 

V.   Buckiiigliam,    Thach.  Cr.  Cas.  143. 

(Mtiss.)  29,  Ihat  evidence  that  the  {e)  Earlc  v.    Rowcroft,    8  East, 

editor,  at  the  time  of  the  publica-  126. 

tion,  was   absent  from   town   and  (/)5  &  6   Wm.  4,  c.  63,  s.  28; 

had  no  concern  in  the  publication  Great   Western   R.  Co.  v.  Bailie,  5 

of  the  number  containing  the  libel,  B.  &  S.  928,  34  L.  J.  M.  C.  31. 
is  admissible  as  going  to  The  intent.  J 


188  SCOPE  AND  PURPOSE  OF  ACT.  [§137 

where  supervisors  were  by  law  directed  to  audit  and  allow 
the  accounts  of  certain  judicial  ulHcers,  and  in  case  of  neglect 
or  refusal  were  subjected  to  a  penalty,  it  was  held  that  the 
latter  was  incurred  by  the  mayor  of  a  city,  acting  as  super- 
visor, who  refused  to  audit  an  account  of  this  class,  because 
the  officer  whose  account  was  offered  for  audit,  was,  as  he 
honestly  believed,"'  unconstitutionally  appointed.""  And  a 
justice  of  the  peace  was  held  liable  for  a  misdemeanor  in 
refusing  to  take  an  affidavit  in  a  cause  before  him,  though 
he  acted  in  good  faith  in  his  refusal."*  So,  under  sec.  96, 
of  the  act  of  Congress  of  20  Jnly,  1868,  a  breach  of  its  pro- 
visions as  to  the  construction  of  a  distillery,  is  "  knowingly 
and  wilfully  "committed,  and  the  penalty  incurred,  although 
the  departure  from  the  prescribed  details  was  for  an  honest 
purpose  and  not  followed  by  an  abstraction  of  .liquor."'] 

§  137.  Restriction  of  General  Terms  to  Particular  Parties. — 
Sometimes,  to  keep  the  Act  within  the  limits  of  its  object, 
and  not  to  disturb  the  existing  law  beyond  what  that  object 
requires,  it  is  construed  as  operative  between  certain  persons, 
or  under  certain  states  of  facts,  or  for  certain  purposes  only, 
though  the  language  expresses  no  such  circumscription  of 
the  lield  of  its  operation.  The  Act  of  1854,  for  instance, 
-which  required,  among  other  things,  that  when  a  bill  of  sale 
was  made  subject  to  a  declaration  of  trust,  the  declaration 
should  be  registered  as  well  as  the  bill,  on  pain  of  invalidity 
against  the  assignee,  in  the  event  of  execution  or  bankruptcy, 
was  held  to  apply  only  to  declarations  of  trusts  by  the 
grantee  for  the  grantor,  but  not  to  trusts  declared  by  the 
grantee  in  favor  of  other  persons  ;  the  object  of  the  Act 
being  only  to  protect  creditors  against  sham  bills  of  sale, 
and  being  completely  attained  by  requiring  the  registration 
of  the  first-mentioned  trusts;  while  the  registration  of  any 
others  would  have  been  foreign  to  the  purposes  of  the  Act 
{a).     So,  the  general   language  of   the  Merchant  Shipping 

'29  On  tlie  strength  of  a  decision  '2'  People  v.  Brooks,  1  Denio  (N. 

of  the  court  of  last  resort   in  the  Y.)  457. 

State,  in  another  case:  see  Purely  v.  '--  U.  S.  v.  McKim.  3  Pitts.  Rep. 

People,  4  Hill  (N.  Y.)  ;J84.  155. 

'=0  iMorris  v.  People,  3  Denio  (X.  (a)  Hills  v.  Shepherd,  1  F.  &  F. 

y.)  381.  191  ;  Robinson  v.  Colling  wood,  34 


§137] 


SCOPE  AND    PURPOSE  OF  ACT. 


189- 


Act  of  1854,  s.  290,  which  provides  that,  if  damage  .sliould 
arise  to  person  or  property  from  non-observance  of  the  sail- 
ing rnles,  it  shonld  be  considered  as  the  wilful  default  of 
the  person  in  charge  of  the  deck  at  the  time,  was  confined- 
by  a  due  regard  to  the  object  in  view,  to  the  regulation  of 
the  rights  of  the  owners  of  ships  in  cases  of  collision,  and 
was  therefore  held  not  to  alfect  the  relations  between  the 
master  and  his  owners,  so  as  to  make  the  former  guilty  of 
barratry,  wliich  would  have  been  altogether  foreign  to  the, 
scope  of  the  xVet  {a). 

The  enactment  (10  &  17  Vict.  c.  59,  s.  19)  which  makes 
presentment  of  any  draft  on  a  banker  payable  to  order  or  on 
demand,  if  purporting  to  be  indorsed  (though  a  forgery)  l)j- 
the  payee,  a  sufficient  authority  to  the  banker  to  pay  the 
amount,  is  in  the  same  way  limited  in  its  effect,  as  in  its 
object,  to  the  relations  between  banker  and  customer ;. 
and  does  not  prevent  the  latter  from  recovering  his  money 
from  the  person  who  received  it  (J).  The  16th  section  of 
the  Companies  Clauses  Consolidation  Act,  which  provides 
that  no  shareholder  shall  be  entitled  to  transfer  any  share 
after  a  call,  until  he  has  paid  up  all  calls  due  on  all  his 
shares,  is  only  a  protection  to  the  company^  giving  it  a  lien 

(Pa.)  147  ;  Reichly  v.  Maclay,  2 
Watts  &  S.  (Pa.)  59;  App  v.  Cor- 
yell, 3  Pen.  &  W.  (Pa.)  494  ;  Conk- 
liu  V.  Conwav,  18  Pa.  St.  329;, 
Hardy  v.  Hunt,  11  Cal.  343;  Wliit- 
well  V.  Carter,  4  Mich.  329;  House 
V.  McKenney,  46  Me.  94;  Perkins 
V.  Eaton,  3  N.  H.  lo2  ;  Humphreys 
V.  Mugee,  13  Mo.  435 ;  Burroughs 
V.  Hunt,  13  lud,  178  ;  Hutchins  v. 
Stihvell,  18  B.  Mon.  (Ky.)  776; 
Liviug.ston  v.  Wootan,  I  N.  &  31. 
S.  C.)  178  ;  Bledsoe  v.  Thompson, 
6  Kich.  (S.  C.)  44;  Corlcv  v.  Berry, 
1  Bailey  (S.  C.)593;  Forrest  v.Hart, 
(3  Murph.  (N.  C.)45S;  Alford  v. 
Burke.  21  Ga.  46  ;  Jacobs  v.  Wal- 
ton, 1  Harr.  (Del.  )  496  ;  Reynolds 
V.  ^IcKinney,  4  Kan.  94  ;  Perkins 
V.  Hvdo,  6  Yerg.  (Tenn.)  288;  Shain 
V.  Searcy,  20  Tex.  122.J 

(a)  Grills  v.  The  General  Iron 
Screw  Co.,  L.  R.  1  C.  P.  600,  3  C. 
P.  476. 

(b)  Ogden  v.  Benas,  L.  R.  9  C. 
P.  513. 


L.  J.  C.  P.  18,  17  C.  B.  N.  S.  777. 
See  also  Ilodson  v.  Sharpe,  10 
East,  330.  So,  the  provision  in 
the  8  &  9  Vict.  c.  109,  which,  after 
making  all  wagers  null  and  void 
enacts  that  no  suit  sliall  be  main- 
tained to  recover  money  won  on  a 
wager  or  deposited  to  abide  the 
event,  is  construed  as  only  prevent- 
ing a  party  to  the  wager  Irom  suing 
to  recover  his  winning,  but  not  to 
prevent  him  from  suing  the  stakc- 
lioldcr  to  recover  his  deposit: 
Hampden  v.  Walsh,  1  Q.  B.  D. 
189.  [Comp.  Kelly  v.  Bart- 
ley,  1  Sandf.  (N.  Y.)  15  ; 
OMaley  v.  Reese,  6  Barb.  (N.  Y.) 
658;  Vischer  v.  Y^ates,  11  Johns. 
(N.  Y.)  23;  Storey  v.  Brennan,  15 
N.  Y.  524;  Parmelee  v.  Roi^ers,  26 
111.  56;  Stephens  v.  Sharp,  Id.  404; 
Wood  V.  Duncan,  9  Port.  (Ala.) 
227:  Schacklet'ord  v.  Ward,  3  Ala. 
37;  Ivey  v.  Phifer,  11  Id.  535; 
]\Ioore  V.  Trippe,  20  N.  J.  L.  263  ; 
Sutphin  V.  Crozer,  30  Id.  257;  Mc- 
Allister V.   Hoffman,    16   S.  &  R. 


190  SCOPE    AND    rUKPOSE  OF  ACT.  [§  137 

or  cliari^e  upon  the  shares  ;  but  it  does  not  affect  the  validity 
of  a  transfer  as  regards  the  creditors  of  tlie  company,  if  the 
company  has  assented  to  it  (a).  So,  it  has  been  held  that  the 
provisions  of  a  railway  Act  which  place  the  management  of 
the  company's  affairs  in  the  hands  of  a  certain  number  of 
directors,  were  intended  for  the  protection  of  the  share- 
holders merely,  and  that  it  was  not  open  to  a  stranger  to 
object  that  they  had  not  been  complied  with  {h).  [So,  where 
an  act  of  Congress  provided  that  the  total  liability  of  an}'  one 
borrower  from  a  national  bank  should  at  no  time  exceed  one 
tenth  of  the  amount  of  the  capital  stock  of  the  bank  actu- 
ally paid  in,  and  a  bank  made  loans  to  a  person  in  excess  of 
the  amount  so  prescribed,  it  was  held  that  this  limitation 
was  intended  as  a  general  rule  for  conducting  the  business 
of  the  bank,  to  protect  the  latter,  its  stockholders  and  credi- 
tors from  unwise  banking,  and  in  holding  the  loan,  not 
to  be  irrecoverable  by  reason  of  the  limitation  and  excess, 
the  Court  said  :  "  We  sliould  not  interpret  the  section  so  as 
to  carry  its  prohibition  beyond  its  true  purpose,  and  thus 
cause  it  to  destroy  the  very  interest  it  intended  to  protect  by 
the  reguhition.'"]  The  38th  section  of  the  Companies  Act  of 
1867,  which  requires  that  every  prospectus  shall  specify  all 
contracts  entered  into  by  the  company  or  by  its  promoters, 
before  the  issue  of  the  prospectus,  and  declares  every  pro- 
spectus which  does  not  specify  them,  fraudulent  on  the  part 
of  the  promoters  and  directors  who  knowingly  issued  it,  as 
regards  persons  taking  shares,  is,  literalh',  wide  enough  to 
include  every  contract  made  by  a  promoter  even  regarding 
his  own  private  affairs  ;  but  it  was  limited  in  construction  to 
the  objects  of  the  Act,  which  was  the  protection  of  share- 
holders. It  was  held,  therefore,  to  include  only  such  contracts 
as    were    calculated    to   influence  persons   in    applying  for 

(a)  Littledale's  Case,  L.  R.  9  Cli.  become   indebted  to    tbe   bank,  a 
2o7.  director,    who,  at   the  same  time, 

(b)  Thames  Haven  Co.  v.  Kose,  was   tbe   president  of  a  company 
4  M.  &  Gr.  552.  -which  bad  borrowed  money  from 

'"■*  O'Hare  v.  Bank,  77  Pa.  St.  tbe  bank,  and  who,  for  this  debt. 
96,  103.  Compare  Penn  v.  Born-  gave  tlie  bank  his  draft  upon  the 
man,  103  111.  523,  where,  Dickey,  treasurer  of  his  compan}%  incurred 
(.'raig  and  Sheldon,  JJ.,dissentin.<;,  no  liability  by  the  same.  Corn- 
it  was  held,  that,  under  a  bank  pare  post,  §  268. 
charter    forbidding   a  director    to 


§  13T] 


SCOPK  AND  PnKI'OSK  OF  ACT. 


V,)l 


shares  (a);  but  iu»t  to  create  any  duty  towards  bondlioklers  (h). 
[A  familiar  instance  of  this  species  of  construction  is  that 
whicli  has  been  applied  to  statutes  relatinii^  to  usury  and 
declarinc^  usurious  contracts  void,  either  entirely  or  to  the 
extent  of  the  excess  over  legal  interest.  In  many  instances, 
these  statutes  have  been  regarded  as  giving  a  defence  only 
to  the  borrower,  a  defense  personal  to  himself  arid  his  pri- 
vies, among  which  have  been  variously  inchided  sureties/^* 
accommodation  indorsers,"^  representatives,  heirs  and  the 
like  ;"*  in  others  it  has  been  held,  that,  where  the  contract 
"would  be  void  as  to  him,  it  would  be  good  as  against  a  thii-d 
party,  e.  ff.,  a  purchaser  of  the  equity  of  redemption  subject 


(a)  Twvcross  v.  Grant,  2  C.  P. 
D.  4G9. 

(b)  Cornell  v.  Hay,  L.  R.  8  C.  P. 
'S2ti. 

'^^  But  see  contra  :  Laraville, 
etc.,  B'k  V.  Bingham,  50  Vt.  105  ; 
and  see  Culver  V.  \Vilbern,48  Iowa, 
26  ;  Swift  V.  Adkins,  2  Lea  (Tenn.) 
137. 

1^*  But  see  AUerton  v.  Belden,  49 
N.  Y.  373  ;  Stewart  v.  Bramball, 
18  N.  Y.  Supr.  Ct  139  ;  Cadys  v. 
Ooodnow,  49  Vt.  400  ;  Kendall  v. 
Vandcrlip,  2  Mackey  (D.  C.)  105. 
Comp.  ilacungle  Sav.  B'k  v. 
Hottenstein,  89  Pa.  St.  328  ;  Biy 
V.  Bank,  79  Id.  453  (cases  of  nova- 
tion). 

"6  See  Ohio,  etc.,  R.  R  Co.  v. 
Kasson,  37  N.  Y.  218  ;  Bullard  v. 
Raynard,  30  Id.  197  ;  Billiugton  v. 
Wagoner,  33  Id.  31  ;  Williams  v. 
Tilt^U  Id.  319;  Merch.  E.xcli.  Nat. 
B'k  V.  Comm.  Warehouse  Co.,  33 
Id.  317;  Bank  v.  Edwards.  1  Barb. 
<N.  Y.)  271;  Fullerton  v.  McCurdy, 
4Lans.  (N.  Y.)  132;  Dix  v.  Van 
Wyck,  2  Hill  (N.  Y)  522  ;  (but  see 
Chamberlain  v.  Dempsey,  14  Abb. 
Pr.  (N.  Y.)  241  ;  Cole  v.  Savage, 
10  Paige  (N.  Y.)  583;  Post  v.  Dart. 
8  Id.  639  ;  Brooks  v.  Avery,  4  N. 
Y.  225  ;)  Green  v.  Kemp,  13  Mass. 
515  ;  Bridw  v.  Hubbard,  15  Id. 
96  ;  Com'th  v.  Weiher,  3  Met. 
(jMass.)  445  ;  Henderson  v.  Bellew, 
45  111.  322;  Valentine  v.  Fish.  Id. 
4G2  ;  Essley  v.  Sloan,  116  Id.  391  ; 
Huston  v.  Striniilmm.  21  Iowa.  36; 
Carmichael  v.  Bodtish,  32  Id.  418  ; 
Fenno  v.  Sayre,  3  Ala.  458  ;  Cain 
V.    Gimon,   36  Id.    168  ;   Gray  v. 


Brown,  22  Id.  262  ;  McGuire  v. 
Van  Pelr.  55  Id.  344  ;  O'Xeil  v. 
Cleveland,  30  N.  ,T.  Eq.  273;  Lee  v. 
Stiger,  Id.  610  ;  Farmer\s  6i  Mech. 
B'k  v.  Kimmcl,  1  Mich.  84; 
Loomis  V.  Easton,  32  Conn.  550  ; 
Austin  V.  C/'hitlenden,  33  Vt.  553  ; 
Reed  v.  Eastman,  50  Id.  67  ;  New- 
bury B'k  V.  Sinclair,  60  N.  H.  100; 
Bensley  v.  Homier,  42  Wis.  631  ; 
Ready  v.  Huebuer,  46  Id.  692; 
Draper  v.  Emerson,  22  Id.  147  ; 
Lazear  v.  Bank,  52  Md.  78;  (but 
see  Thorn  v.  Doub,  8  Gill  &  J. 
(Md.)  1  ;)  Ransom  V.  Hays,  39  Mo. 
445 ;  Cramer  v.  Lepper,  26  Ohio 
St.  59 ;  Smith  v.  Bank,  Id.  141  ; 
Stephen  v.  Muir,  8  Ind.  352  ;  Con- 
well  V.  Pumphrcy,  9  Id.  135 ; 
Wright  V.  Bundy,  11  Id.  398;  Stein 
V.  Indianapolis,  etc.,  Ass'ti,  IS  Id. 
237  ;  Stockton  v.  Coleman,  39  Id. 
107  ;  Studabaker  v.  Marquardt,  55 
Id.  341  (but  see  Cole  v.  Bansemer, 
26  Id.  94)  ;  Campbell  v.  .Johnston. 
4  Dana  (Ky.)  177  ;  Pritchett  v. 
Mitchell,  17  Kan.  355  ;  Pickett  v. 
Bank,  32  Ark.  346  ;  Spongier  v. 
Snapp,  5  Leigh  (Va.)  478  ;  Lea  v. 
Feamster,  2rW.  Va.  108.  But  see 
contra :  McAlister  v.  Jerman,  32 
Miss.  142  (comp.  Dennistown  v. 
Potts,  26  Id.  13);  Cummins  v.  Wire, 
6  N.  J.  Eq.  73  (comp.  Dolman  v. 
Cook,  14  Id.  56  ;  Conover  v. 
Hobart,  24  Id.  120)  ;  Green  v. 
Tyler,  39  Pa.  St.  361  ;  Link  v. 
Assoc'u,  89  Id.  15  ;  Schutt  v. 
Evans,  109  Id.  625  (accomm.  endor- 
ser) ;  Nisbett  v.  Walker,  4  Ga. 
221. 


192  EVASION.  [g  13S 

to  an  usurious  mortgage,  except  as  to  illegal  interest,  which 
was  to  be  deducted  ;'"  and  in  others,  again,  it  has  been 
decided  that  the  defense  could  not  be  set  up  against  a  bona 
fide  holder  of  the  debt  without  notice  of  'the  usury;"'  and 
again,  that  the  lender  cannot  avoid  his  contract  6n  the 
ground  of  usury.""  So,  a  bond  given  by  way  of  margin,  to 
secure  the  settlement  of  differences  in  a  stock  cramblinir 
transaction,  may  be  void  as  between  the  original  parties,  but 
valid  in  the  hands  of  an  innocent  assignee  for  value.'"  And 
even  as  between  the  original  parties,  if  one  of  them  intended 
a  bona  fide  purchase  or  sale,  the  contract  will  be  good  as  to 
him  and  enforceable  by  him,  unaffected  by  the  secret  cor- 
rupt intent  of  the  other.'^'] 

§  138.  Presumption  against  Permitting  Evasion. — It  is  tllC  duty 
of  the  judge  to  make  such  construction  as  shall  suppress  all 
evasions  for  the  continuance  of  the  mischief  {a).  To  carry 
out  effectually  the  object  of  a  statute,  it  must  be  so  construed 
as  to  defeat  all  attempts  to  do  or  avoid  in  an  indirect  or 
circuitous  manner  that  which  it  has  prohibited  or  enjoined  ip). 
In  fraudem  legis  facit,  qui,  salvis  verbis  legis,  sententiam 
ejus  circumvenit  (c);  and  a  statute  is  understood  as  extend- 
ing to  all  such  circumventions,  and  rendering  them  unavail- 
ing.    Quando  aliquid  prohibetur,  prohibetur  et    omne  per 

'"  See  Ladd  v.  Wiggin,  35  N.  II.  ertson,  13  Cush.  (Mass.)  loG  (coini). 

421.'  act  1863,  cli.  242);  True  v.  Triplcit. 

'38  See  Jackson  V.  Bowen.  7  Cow.  4  Mete.  (Kv.)  57  ;   and  see  McCul- 

(N.  Y.)  13;  Powell  v.   Waters,  8  \o\is,h.   v.    Mitchell,   64    Ala.   250; 

Id.  669  ;  Kent  v.  Walton,  7  Wend.  Bank  of  W^ashington  v.  Arthur,  3 

(N.  Y.)  256  ;  Htieklev  v.  Sprairue,  Gratt.  (Va.)  173. 

10  Id.  113  ;  Smedburg  v.  Simpson.  is^   Elwell     v.    Clianiberlaiii,     4 

2  Sandf.  (N.  Y.)  85  (but  see  Hull  Bosw.  (N.  Y.)  320  ;  C.loversville 
V.  Ernest,  36  Barb.  585) ;  Smallev  B'k  v.  Peace,  15  IIuu  (N.  Y.)  564  ; 
V.  Doughty,  6  Bosw.  (N.  Y.)  66  ;  Riley  v.  Greirff,  16  Wis.  606. 
Conkling  v.  Underbill,  4  111.  388  ;  '•»«  See  Griffiths  v.  Sears,  112  Pa. 
Freeman  v.  Brittiu,  17  N.  J.  Eq.  St.  523.  But  see  Unirer  v.  Boas, 
101  ;  Creed  v.  Stevens,  4  Whart.  13  Id.  600;  Tenuey  v.  Foote,  4  111. 
(Pa.)   223 ;    Clapp   v.    Hanson,    15  App.  594. 

Me.  345;  Tliomasson  B'k  v.  Stimp-  '■*'  Williams  v.  Tiedeman,  6  Mo. 

son,  21  Id.  195  :   Forbes  v.  Marsh,  App.  269.     See,  to  similar  effect, 

3  N.  H.  119;  Gross  v.  Funk,  20  Wall  v.  Schneider,  59  Wis.  352;. 
Kan.  655  ;  Partridge  v.  Williams,  and  compare  Bartlett  v.  Smith,  4 
72  Ga.  807  (note  assigned  as  coll.  McCrary,  388. 

security) ;    and     see    Mitchell    v.  {(i)   Magdalen  College   Case,    11 

McCuUougli.  r)9  Ala.  179  ;  Roches-  Rep.  716. 

ter  B'k  v.  McLeod  Co.,  27  Minn.  {b)   Bac.    Ab.    Statute  J.  ;   Com. 

87.       But  see    contra:     Lloyd    v.  Dig.  Pari  mt.  K.  28. 

Scott,  4  Pet.  205  ;  Kendall  v.  Rob-         (c)  3  Dig.  1,  3,  29. 


§  13S]  EVASION.  193 

quod  devcjiitnr  ad  illud  (a).  Whon  the  nets  of  tlio  parties 
are  adopted  for  tlie  purpose  of  effecting  a  tiling  which  is 
prohibited,  and  the  tiling  prohibited  is  in  consequence  effect- 
ed, the  piirties  have  done  that  which  they  have  purposely 
caused,  though  they  maj'  have  done  it  indirectly  {h).  When 
the  thing  done  is  substantially  that  which  was  prohibited^ 
it  falls  within  the  Act,  simply  because,  according  to  the  true 
construction  of  the  statute,  it  is  the  thing  thereby  prohib- 
ited (<?).  Whenever  Courts  see  such  attempts  at  conceal- 
ment, "they  brush  away  the  cobweb  varnish,"  and  show 
the  transaction  in  its  true  light  {d).  They  see  things  as  ordin- 
ary men  do  (<?),  and  see  through  them.  Whatever  might  be 
the  form  or  color  of  the  transaction,  the  law  looks  to  the 
substance  of  it  {/).  [So  it  was  said  with  reference  to  a 
statute  which  forbade  preferences  in  assignments  for  benefifc 
of  creditors,  that  the  form  of  the  transaction  was  not 
material,  so  long  as  it  amounted  to  an  absolute  transfer  of 
the  debtor's  property  for  that  purpose  ;'"  and  that  the  law 
could  not  be  evaded  "  by  any  sham  departure  from  the 
general  form  of  assi2;nments."  ***  And  concernimjl  the 
Usury  Act,  it  was  said  that  if  the  contract  really  was  an 
usurious  loan  of  money,  the  wit  of  man  could  not  find  a  shift 
to  take  it  out  of  the  Act  (^),  So,  if  the  contract  be  a  wager  in 
substance,  no  matter  how  the  end  is  brought  al>out,  it  would 
be  void,  though  the  object  were  ever  so  cunningly  concealed 
in  the  form  given  to  the  transaction  {h)  ;  [e.  g.,  a  wi-itten 
promise  to  pay  a  sum  of  money,  or  a  promissory  note  pay- 
able on  the  happening  of  a  contingency  which  is  the  subject 

(rt)  2  Inst.  48.  iff)  Per  Lord  Mansfield  in  Floyer 

(b)  Per  Blackburn,  J.,  in  Jeffries  v.  Edwards,  Cowp.  114  ;  [.Mills  v. 
V.  Alexander,  iil  L.  J.  Cli.  148,  8  Building  Assocn.  75  N.  U.  2i)2  ; 
H.  L.  594.  Miuliu     v.     Building     Assoc'n,    2 

(c)  Per  Lord  Cianwortli  in  Cold.  (Tenn.)  418,  citing  Lord 
Pbilpott  V.  St.  George's  Hospital,  Coke's  warning  :  "  To  them  that 
6  H.  L.  338,  27  L.  J.  Cb.  72.  lend   money,    mj^  caveat  is,  that, 

(d)  Per  Wilmot,  C.  J.,  in  Collins  neither  directly  nor  indirectly,  by 
V.  J31aiitern,  2  \Vils.  349.  art  or  cunning  iuvcntiun,  they  take 

(e)  Per  Brougham  in  Warner  v.  above  six  in  the  hundred;  for  they 
Armslrong,  3  M.  &  K.  45.  that  seeke  by  slight  to  cieepe  out 

(/')  Per  Lord  lenterden  in  Solarte  of  these  statutes,  will  deceive  them- 

V.  Melville,  1  jMan.  &  Bv.  204.  selves  and  repent  in  the  end."] 

"•^Johnson's  App.,  103  Pa.  St.  (/t)  Tate     v.    Wellings,    3   T.  R. 

373,  377.  531  ;  Boldero  v.  Jackson,  11  East, 

"3  Fallon's  App.,  42  Pa.  St.  235.  612  ;  White  v.  Wright,  3  B.  &  C. 

See,  however,  post,  §  145.  273. 

13 


194 


EVASION. 


[§  139 


of  the  wager;'"  an  agreement  between  two  persons,  by 
which  one  was  to  sell  and  the  other  to  buy  a  lot  of  hogs  at 
a  certain  sum  per  pound,  paj-able  upon  the  happening  of  the 
■contingenc}'  ;"*  a  policy  of  ii^sui-ancu  taken  upon  the  life  of 
another  by  one  who  has  no  insurable  interest  in  the  insured  ;'" 
a  contract  to  deliver  goods  or  stocks  at  a  future  day,  the  real 
intent  of  which  is  not  to  deliver  the  goods  or  stocks  at  all, 
but  to  speculate  in  the  rise  and  fall  of  their  prices,  the  one 
party  to  pay  to  the  other  the  difference  between  the  contract 
pi-ice  and  the  market  price  upon  the  date  fixed  for  the  exe- 
cution of  the  contract.'"] 

§  139.  An  Act  which  prohibited  under  a  penalty  the  per- 
formance of  plays  without  license,  would  extend  to  a  per- 
formance where  the  actors  did  not  come  on  the  stage,  but 
acted  in  a  chamber  below  it,  and  their  figures  were  reflected 
b}'  mirrors  so  as  to  appear  to  the  spectators  to  be  on  the 
stage  {a).  Lord  Campbell's  Act,  which  requires,  under  cer- 
tain circumstances,  the  insertion  of  a  full  apology  in  a  news- 
paper, for  a  libel,  would  not  be  complied  with,  if  the  apol- 
ogy, however  suitable  in  its  terms,  was  printed  in  such  type 


'*^  Guyman  v.  Builiiigame,  86 
111.  201  ;  Sipe  v.  Fiiiartv,  0  Iowa, 
394;  Given  v.  Ko<?ers,  11  Ala.  543; 
Nudd  V.  Barnett,  14  Ind.  25. 

»5  Lucas  V.  Harper,  24  Ohio  St. 
328. 

»6  Warnock  v.  Davis,  104  U.  S. 
775  ;  Gilbert  v.  Moo.se,  104  Pa.  St. 
74;  and  see  Blattenberi^cr  v.  llol- 
nian,  103  Id.  555,  as  to  the  assignee 
of  such  with  knowledge  of  the 
fraud. 

i«  Irwin  V.  Williar,  110  U.  S. 
499;  Ilentz  v.  Jewell,  4  Woods. 
656 ;  Kirkpatrick  v.  Adams,  20 
Fed.  liep.  287  (cotton  futures); 
Bartlett  v.  Smith,  4  McCrary,  388 
(wiieat);  Story  v.  Solomon,  71  IS. 
Y.  420;  Kingsbury  v.  Kirwan,  77 
Id.  612  ;  Yerkes  v.  Solomon,  18  N. 
Y.  Supr.  Ct.  471;  Beveridge  v. 
Hewitt,  8  111.  App.  467;  Pickering 
V.  Cease,  79  111.  328  ;  North  v. 
Phillips,  89  Pa.St.  250;  Griffiths  v. 
Sears,  112  Id.  523  ;  liumsey  v. 
Berry,  05  Me.  570;  Barnard  v. 
Backhaus,  52  Wis.  593  (giain); 
Waterman  v.  Buckland,  1  Mo. 
App.  45;   Williams  v.  Tiedeman,  6 


Id.  269.  But  the  mere  fact  that 
goods  or  stocks  are  sold  to  be  deliv- 
ered at  a  future  date,  wliicli  arenot, 
at  the  time  of  the  making  of  thccon- 
tract,  in  possession  of  the  seller, 
does  not  make  the  transaction  a 
wager,  if  tlicre  is  an  honest  inten- 
tion to  deliver  :  Bartlett  v.  Smith, 
4  ^IcCrary.  388;  Cole  v.  Milmine, 
88  111.  349;  Maxton  v.  Gheen,  75 
Pa.  St.  100;  and  see  Gilbert  v. 
Gaugar,  8  Biss..214  ;  Barnard  v. 
Backhaus,  52  Wis.  593.  And  an 
agreement  to  share  the  profits  and 
losses  upon  the  sale  of  stocks  owned 
by  one  of  the  parties  thereto  and 
bought  by  him  through  a  broker 
on  margin,  is  not  a  wager  contract, 
nor  illegal  stockjobbing:  Bu'.lard  v. 
Smith,  139  Mass.  492 ;\i  contract  to 
deal  in  slocks  on  margin  not  being 
illegal,  if  the  stocks  are  actually 
purchased  and  the  contract  is  not; 
one  merely  lor  the  payment  of  dif- 
ferences :  Hatch  v.  Douglas,  48 
Conn.  116.  ' 

00  6  &  7  Vict.  c.  08,  s.  2;  Day  v. 
Simpson,  18  C.  B.  N.  S.  680,  34  L. 
J.  M.  C.  149. 


§  139j  EVASION.  195 

or  in  sncli  a  part  of  the  paper  ns  would  be  likely  to  escape 
the  attention  of  ordinary  readers  (a).  [An  act  providin"- 
that  j)ublic  notice  of  an  intended  application  for  a  borough 
charter  shall  be  given  in  at  least  one  newspaper  of  the 
proper  connty,  is  not  complied  with  unless  the  notice  states 
the  time  and  place,  when  and  where  the  petition  is  to  be 
presented.""]  The  Actof  185-i  which  required  the  registra- 
tion of  bills  of  sale  of  personal  chattels,  was  held  to  extend 
to  agreements  for  a  bill  of  sale,  constituting  an  equitable 
assignment  {h).  And  where  the  grantor  of  a  bill  of  sale  of 
furniture  remained  in  possession  as  the  servant  of  the  gran- 
tee, with  leave  to  use  the  furniture  as  part  of  his  salary,  it 
was  held  that  the  grantee  was  not  in  possession  by  his  ser- 
vant, but  that  the  grantor  was  in  possession  within  the 
meaning,  for  the  case  was  within  the  mischief,  of  the  Act  (c). 
[Where  a  statute  forbids  a  married  woman  to  make  herself 
liable  as  a  surety  for  the  debt  of  another,  her  acceptance  of 
a  bill  of  exchange,  drawn  on  her  for  the  purpose  of  paying 
a  debt  due  the  drawer  by  a  third  party,  is  void."'  And 
where  she  is  prohibited,  during  her  second  marriage,  from 
"  alienating"  such  real  estate  as  she  may  liave  acquired  by 
virtue  of  her  former  marriage,  that  prohibition  cannot  be 
evaded  by  her  mortgaging  such  property. ''°  And  so,  where 
she  is  forbidden  to  convey  her  real  estate  without  joinder  of 
her  husl)and  and  acknowledgment,  she  cannot  bind  her- 
self by  an  agreement  to  convey,  except  with  joinder  of  her 
husband  and  acknowledgment.'"  Under  a  statute  prohibit- 
ing the  standing  of  a  jack  and  letting  him  to  mares  for 
profit  and  hire,  without  license,  the  standing  of  a  jack  under 
a  contract  to  have  the  mules  at  a  stipulated  price,  less  than 

(a)  fi  &  7  Vict.  c.  96,  s.  2;  Lafone  144;  Marsden  v.  Meadows,  7  Q.  B. 

V.  Smith,    3  II.  &  N.  735,  28  L.  J.  D.  80;  Woodgate  v.  Godfrey,  5  Ex. 

Ex.  3:].  D.  24. 

•«  Kiioiids'     App.,    101   Pa.    St.  (f)  Pickard  v.    Marriasje.    1  Ex. 

284.     Whelliur  such  notice  may  be  D.  304  ;    Exp.  Lewis.  L.  R.  6   Ch. 

published    ia   a    weckl}'    religious  620.     See  another  ex.aniple  in  Stal- 

paper,  was  not  decided.  lard  v.  Marks,  3  Q.  B.  L).  412. 

{b)  17   &  18   Vict.    c.   36  ;    Exp.  '«  Cooley    v.  Barcrol't,  43  N.  J. 

Mackay,  L.  R.  8  Ch.  G43;  Edwards  L.  363. 

v.  Edwards,  2  Ch.  D.  2!)1;  Brauton  ''»  Vinnedge  v.  Shaffer,  35  Ind. 

V.  Grill'ets,    2  C.  P.  D.  212  ;   Exp.  341;  even  where  there  arc  no  chil- 

Odell,    10   Ch.  D.  76:   but   comp.  drenrlb. 

Allsopp   V.    I)ay,  7  II.  &   N.  457;  '"  Milwce  v.    IMilwce,     44   Ark. 

Byerley   v.  Prevost,    L.  R.  6  C.  P.  112  ;  Felkner  v.  Tighe,  39  Id.  357. 


196  EVASION.  [§  140 

the  value,  equally  requires  a  license.'^"  An  agent  selling- 
tickets  at  a  pienic,  for  which  beer  is  furnished  on  presenta- 
tion, may  be  convicted  of  selling  liquor  without  license.'" 
An  instrument  whereby  one  gave  to  another  an  irrevocable 
power  of  attorney,  with  the  right  to  substitute  otlier  attor- 
neys, to  sell  land  to  be  granted  to  the  maker  as  a  colonist, 
to  a  certain  person  or  to  any  one  the  hitter  sl«ould  name,  was 
held  to  be  a  contract  to  sell  the  land  before  issuaTicc  of  title 
and  void."*  And  a  corporation  whose  charter  did  not  allow 
it  to  sell  coal,  but  which  owned  large  quantities  of  coal  land 
which  it  leased  to  others  to  be  worked,  was  held  to  be 
within  an  act  imposing  certain  taxes  upon  corporations  pos- 
sessing the  right  to  mine  or  purchase  and  sell  coal,'"  Art 
act  authorizing  the  issue  of  municipal  bonds  "  at  not  less 
than  par,"  but  allowing  councils  to  pay  areasonable  compen- 
sation for  the  sale  or  negotiation  of  the  bonds  would  not 
warrant  the  allowance  of  a  commission  to  a  purchaser  of  the 
bonds  from  the  city  at  par  ;  for  that  would  be  a  sale  at  less 
than  par.'"] 

§  140.  The  Mortmain  Act  of  Geo.  2,  which  prohibits  the 
disposition  to  a  charity,  of  land,  or  money  to  be  laid  out  in 
the  purchase  of  land,  otherwise  than  by  deed  executed  twelve 
months  before  the  donor's  death,  to  be  enrolled  witliin  six 
months  from  its  execution  and  to  take  effect  immediately, 
and  without  power  of  revocation  or  any  reservation  for  the 
benefit  of  the  donor,  has  frequently  been  the  subject  of 
such  experiments.  Thus,  a  bequest  of  money  to  the  com- 
mittee of  a  school,  on  condition  that  they  would  provide 
land  for  a  charitable  purpose,  would  fall  within  the  Act;  for 
such  a  transaction  differs  but  in  name  from  a  purchase  of 
the  land  and  a  devise  of  it  (a).  The  testator  did  not,  indeed, 
directly  devise  the  land  ;  but  he  gave  money  in  considera- 
tion of  land  being  given  to  a  charity,  which  was  substan- 
tially the  same  tiling.     So,  if  money  were  bequeathed  to  be 

'"  Com'tli  V.  Harris,  8  B.  Mou.  ^^^  Whelen's  App.,    108  Pa.  St, 

(Ky.)  878.  1G2. 

'^^  Com'lh     V.    llellner,   8  Leg.  (a)  Atty.-Gcnl.  v.  Davies,  9  Ves. 

Gaz.  (l-'a.)  1G6.  535;  and  see  tlie  judgment  of  Lord 

'*••  Cooke  V.  Lindsay,  57  Tex.  67.  Cranworth     in     Pliiipott     v.    St.. 

'"  Big  Black  Creek,  etc.,  Co.  v.  George's  Hospital,  6  li.  L.  349, 
Com'tb,  94  Pa.  St.  450. 


§  1-iO]  EVASION.  197 

laid  out  in  building  houses,  where  there  was  no  land  already 
in  mortmain  {a)  to  build  them  on,  such  a  bequest  would  be 
construed  as  an  indirect  instruction  to  |)urchase  land  for  tlie 
purpose  {h).  Where  the  owner  of  land,  with  the  object  of 
evading  the  statutes,  executed  a  deed,  which  he  kept  con- 
cealed till  his  death,  wherebj'  he  covenanted  that  he  or  his 
executors  would  pay  to  certain  trustees  for  certain  charitable 
purposes,  a  large  sum  of  money,  which  would  necessarily 
have  to  be  raised  out  of  his  land,  this  was  held  to  fall  within 
the  prohibition  of  the  statute.  The  creation  of  a  fictitious 
debt  on  which  execution  might  issue,  and  the  land  be  taken, 
was  but  an  indirect  mode  of  making  a  gift  of  the  land  (<?). 
[Under  an  act  imposing  collateral  inheritance  tax  on  "estates 
by  will  ,  .  .  or  .  .  .  transferred  by  deed,  grant,  bargain  orsale 
made  or  intended  to  take  effect  in  possession  or  enjoyment 
after  the  death  of  the  grantors,"  and  requiring  the  executors 
to  pay  it,  a  person  will  not  be  permitted  to  evade  the  impo- 
sition by  a  conveyance  of  his  estate  during  his  life-time,  even 
where  possession  is  taken  b}'  the  grantee  before  the  gran- 
tor's death,  if  the  enjoyment  of  the  property  conveyed  is 
Tiot  intended  to  take  effect  until  after  his  death.'"  And, 
where  a  decedent,  during  his  life-time  had  assigned  certain 
stock  to  a  trustee,  in  trust  that  he  would  pay  the  assignor 
the  income  for  life  and,  after  his  death,  certain  sums  and 
annuities  to  persons  named  in  the  declaration  of  trust,  if 
they  survived,  and  the  remainder  to  purposes  to  be  declared 
in  his  will,  reserving  the  right  to  revoke  all  the  trusts 
declared,  it  was,  after  his  death  without  such  revocation, 
held  that  the  sum  assigned  was  subject  to  collateral  inheri- 
tance tax,  and  that  the  executors  were  the  persons  from  whom 
it  was  to  be  demanded.'"  Under  an  ordinance  prohibiting 
persons  from  "erecting"  or  "building"  wooden  houses, 
etc.,  the  elevation  or  enlargement  of  a  wooden  building,  so 

(«)  Comp.   Brodie  v.  Cbandos,  1  337,  47  L.  J.  8G3  ;   comp.  Re  Rob- 

Bro.  O.  C.  44n;   imd   Pritcbavd  v.  son.  19  Cli.  D.  150.  51  L.  J.  337. 
Arbouin,  3  Kuss.  456.  '"  Reisli  v.  Com'th,  106  Pa.  St. 

{h)  Attv.-Geiil.  v.TjMidnll,  Ambl.  531. 
614;  Mather  V.  Scott.  3  Keen,  172;  "^«   AVriglit's   App.,    38   Pa.     St. 

Giblelt  V.  Ilobsoii,  3  M.  &  K.  517.  507.      And  see  Trilt  v.  Crotzer,  13 

(c)  Jeffries   v.   Alexander,   8   II.  Id.  451.     But  see,  under  the  act  33 

L.  594,  31    L.   J.   Ch.    9  ;   and  per  &  33  Vict.  c.  71,  s.  87.  post,  ^  144. 
«Cur.  ia  Attree  v.  Hame,  9  Ch.  D. 


198 


EVASION. 


[§l-tl 


as  materiallj  to  alter  its  character,  was  held  to  be  punish- 
able.'n 

§  141.  So,  a  settlement,  under  the  Poor  law,  by  renting 
a  teneinent,  was  not  obtained  where  the  rentini^  was  color- 
able or  fraudulent  (a).  It  has  been  held  that  where  a  woman 
pregnant  with  an  illegitimate  child  was  fraudulently  removed 
by  the  ofiicers  of  the  parish  in  which  she  was  settled  {b)  to 
another  parish,  the  child's  settlement  was  not  the  parish 
where  it  was  born,  but  that  in  which  it  would,  but  for  the 
fraudulent  removal,  have  l)een  born  (c).  Indeed,  it  has 
been  held  that  where  an  unmarried  woman  was  removed  to 
a  parish  by  order  of  justices,  and  gave  birth  to  a  child  there, 
and  the  order  was  quashed  on  appeal,  the  child  was  to  be 
regarded  as  born  in  the  parish  where  he  ought  to  have  been, 
and  not  where  he  actually  was  born  {d).  Where  a  woman, 
after  failing  to  obtain  a  bastardy  order  where  she  resided, 
removed  to  a  neighboring  borough  for  the  avowed  purpose 
of  trying  to  get  the  order  there  ;  it  was  held  that  the  justices 
of  the  borough  had  no  jurisdiction  to  make  it,  under  the 
Act  which  gives  such  authority  to  justices  of  the  place  where 
the  woman  "resides"  {e).  It  would  have  been  different  if 
she  had  not  removed  for  the  sole  object  of  getting  into 
another  jurisdiction  {/). 

159  Douglass  V.  Com'th,  2  Rawle 
(Pa.)  263.  But  sec  Booth  v.  Slate, 
4  Conn.  05,  where  repairing  and 
changing  into  a  dwelling  a  build- 
ing originally  erected  for  a  meeting 
house  and  subsequently  used  as  a 
joiner'.s  shop  was  held  not  to  be  an 
erection  prohibited  by  statute;  also, 
Tuttle  V.  State,  Id.  08.  as  to 
removal,  repair  and  addition  ; 
Daggett  V.  State,  Id.  01,  as  to 
adclition  to  a  wooden  building;  and 
Brown  v.  Ilunn,  27  Id.  332,  as  to 
the  removal  of  a  wooden  building 
from  one  part  of  a  lot  to  another 
and  its  permanent  location  at  llie 
latter.  See  also  N.  Y.  Fire  Dep't 
V.  Buhler,  35  N.  Y.  177,  that  a 
building  originally  used  as  a  dwell- 
ing, but  no  longer  so  used,  is  with- 
in the  i)rohibition  of  an  act  in 
regard  to  the  erection  of  wooden  or 
frame  bidldings  within  the  lire 
limits  of  the  city  of  JS'ew  York,  so 
as  to  prohibit  its  being  raised  under 


a  clause  in  the  act  permitting 
wooden  dwelling  houses  to  be 
raised  under  certain  circumstances, 
(rt)  R.  V.  Woodland,  1  'V.  II.  261; 
R.  V.  Tillinoham,  1  B.  &  Ad.  180  ; 
R.  V.  St.  Sepulchre,  Id.  934. 

(b)  See  R.  v.  Astley,  4  Doug. 
389. 

(c)  Masters  v.  Child,  3  Salk.  06  ; 
Tewkesbury  v.  Twyning,  2  Bott. 
3  ;  comp.  R.  v.  Mattersey,  4  B.  «& 
Ad.  211  ;  R.  V.  Halifax,  2  B.  & 
Ad.  211  ;  and  R.  v.  Birmingham, 
8  B.  &  C.  29. 

((/)  Much  Walt  ham  v.  Pcram,  3 
Salk.  474;  Westbury  v.  Coston,  Id. 
51)2  ;  R.  V.  Great  Salkeld,  6  M.  & 
S.  408. 

(c)  R.  V.  ]Mvott,  32  L.  J.  M.  C. 
138;  R.  V.  Annaudale,  3  T.  R.  332, 
385. 

(/)  R.  V.  Hughes,  Dears.  &  B. 
188  ;  20  L.  .T.  M.  C.  133;  Massey  v. 
Burton,  2  H.  &  K  597;  2<  L.  J. 
Ex.    101.      [But    a    person    may 


§  142]  EVASION.  19D 

§  142.  [[Tnderan  act  wliicli  required,  in  suits  upon  certain 
causes  of  action,  that  the  defendant  should,  within  a  certain 
time,  file  an  affidavit  of  his  defence,  setting  forth  the  nature 
and  character  of  the  same,  and,  in  default  thereof,  allowing 
the  court  to  enter  judgment  for  plaintiff,  it  was  held  that 
the  court  had  authority  and  was  bound  to  enter  judgment, 
not  only  where  the  defendant  failed  to  file  any  affidavit  of 
defence,  but  also  in  those  cases,  Avhere  the  defence  set  forth 
by  him,  in  his  affidavit,  was  insufiicient  in  law  to  bar  a 
recovery  ;  otherwise,  not  only  would  the  requirement  to  set 
forth  the  nature  and  character  of  the  defence  be  a  useless 
exaction,  but  the  duty  could,  in  every  case,  be  evaded  by  a 
frivolous  affidavit.""  Again,  a  general  railroad  act  jxissed  in 
1849  required  a  railroad  company,  locating  its  line  on  a 
public  road,  to  reconstruct  the  same  in  another  location.  A 
survey  made  of  a  raih-oad,  in  1871,  took  in  a  county  road. 
The  construction  of  the  railroad  was  not  begun  until  1879. 
Meanwhile  the  road  was  taken  into  a  city  as  a  street.  It  was 
held  that  the  liability  of  the  railroad  company,  under  the 
act  of  1849,  accrued  at  the  date  of  its  location  by  the  survey 
in  1871,  and  was  not  changed  by  the  subsequent  delay  of 
the  company  to  complete  its  works.""  Again,  where  an  act 
granting  certain  privileges  to  a  street  passenger  railway 
company,  authorized  its  directors  to  declare  dividends  of  its 
profits  "  at  such  time  or  times  as  they  may  deem  expedient," 
but  provided  that  the  company  should  annually  pay  into 
the  city  treasury  a  tax  of  six  percentum  upon  so  much 
of  any  dividend  declared  as  should  exceed  six  percentum 
upon  its  capital  stock,  it  was  held,  not  only  that  the  term 
"capital  stock"  related  to  the  amount  of  capital  stock 
actually  paid  in  and  nut  to  the  amount  of  the  nominal 
authorized    capital    stock,   but   that   the    provision   for   the 

become  a  stockholder  in  a  build-  "'    Pittsb..    etc.,    Ry.    Co.     v. 

ing  association  for  tlu-  mere  \mr-  Com'th.    101   Pa.     St.     192.      The 

pose  of   obtainimra  loan,  and  the  line  imposed  by  the  act,  however, 

fact  that   this  alone  was  his  pur-  is  a  punishment  for  the  disregard 

pose     constitutes  no   obiection  to  of  the  duty  of  reconstruction,  not 

his    exercising    all   the  'rights   of  for  taking  tiie  highway  ;  and  hence 

membership  therein  :   ]\Iech..  etc..  the   railroad   company    cannot    be 

Ass'n  V.  Wilcox.  24  Conn.  147.]  compclleii  in  criminal  procedings 

"^"i  West  V.  Simmons,   2  Whart.  either  to  remove   its   works,  or  to 

(Pa.)  2G1  ;   Rising   v.  Patterson,  o  reconstruct  the  road,  but  only  the 

l([  31(5  fine  can  be  inflicted  :  lb. 


200  EVASION.  [§§  143,   144: 

-annual  payment  of  a  tax  upon  ''  any  dividend  declared,"  etc., 
contemplated  that  the  tax  should  be  based  upon  the  aggregate 
of  dividends  declared  in  any  one  year,  and  not  upon  any 
iiiugle  dividend.'" 

§  143.  [It  has  been  held,  tliat,]  where  the  payment  of 
rates  is  made  a  matter  of  persoiud  qualification,  the  Act 
would  not  be  complied  with  if  they  were  paid  by  auother 
person  on  behalf  of  him  who  claims  the  qualification  {a). 
[But,  where  the  agency  of  the  person  who  pays  the  tax,  the 
payment  of  which  by  one  is  a  prerequisite  to  qualify  him  as 
a  voter,  is  recognized  by  the  latter,  he  acquires  the  same 
right  as  if  payment  were  made  with  his  own  hand.'"  And 
consequently,  if  such  payment  by  another  is  subsequently 
ratified  by  the  person  for  whom  it  is  made,  though,  at  the 
time,  without  his  knowledge,  it  will  be  sufficient  to  confer 
upon  him  the  right  to  vote.'"  Accordingly,  it  lias  been  held 
in  Pennsylvania,  that  the  requirement  of  payment  of  taxes 
thirty  days  before  the  election,  as  a  qualification  for  the 
right  of  voting,  is  satisfied  by  a  payment  thereof  by  another 
person,  if  appropriated,  at  the  time  of  payment  to  the  credit 
of  tlie  particular  person  by  name,  on  whose  account  it  is 
paid  ;'"  and  the  voter  is  not  obliged  to  show  that  he  assumed 
and  acknowledged  the  payment  by  the  agent,  before  the 
expiration  of  the  time  limited  for  payment  of  the  tax.""] 

§  144.  Limits  of  the  Rule.— It  is,  however,  essential  not  to 
confound  what  is  actually  or  virtually  prohibited  or  enjoined 

>62  Philadelphia  v.  Pass.  1\y.  Co.,  Lane.  B.  61. 

102  Pa.  St.  190.  iiiB  Contested  Elect.  Dauphin  Co., 

(a)  R.  V.   Bridgnorth,    10  A.  &  supra.     But  where  a  constitutional 

E.  6(5  ;  Durant  v.  Withers,  L.  li.  0  provision    required,  that,  in  order 

C.  P.  257.  But  conip.  K.  v.  to  be  entitled  to  vote,  a  person 
Bridgewater,  3  T.  R.  550  ;  R.  v.  must  have,  within  two  years, 
Weoblcy,  2  East.  68  ;  ITuches  v.  paid  a  state  or  country  tax,  Avhich 
Chatham,  5  jM.  &  Gr.  54  ;  It.  v.  S.  had  been  assessed  at  least  six 
Kilvington.  5  Q.  B.  216.  See  months  before  the  election,  it  was 
Chinnery  v.  Evans,  11  II.  L.  115.  held  tliat  the  assessment  must  have 
and  Ilailock  v.  Ashberry,  19  Ch.  been  upon   him   individually,  and 

D.  539  ;  51  L.  J.  394.  that  the  payment  by  him  of  a  tax, 
>63  Humphrey    v.    Kingman,    5      not  assessed  against  him  until  the 

Met.  (Mass.)  160.  day  before  the  election,  but   laid 

'"  Contested   Election    Dauphin  upon   the   county  more     than   six 

Co.,  11  Pliila.  (Pa.)  645.  months  before,  was  not  sullicicnt  : 

"^^Ibid.;    Gilliu    v.    Armstrong-.  Catlin     v.    Smith,    2  Sorg.    &   R. 

35  Le«r.   In.  282;  Exp.  Grilhlhs.^l  (Pa.)  267:  and  see  Thompson  v. 

Kulp,"l57;  Glazier  v.  Merrinuer,  12  Ewing,  1  Brews.  (Pa.)  102. 


g   114  J  EVASION. 


201 


by  the  Uinguage,  with  what  is  really  beyond  the  coiitcinpla- 
tioii,  though  it  may  be  within  the  policy,  of  the  Act;  for  it 
is  only  to  the  former  case  that  the  principle  under  conj^ider- 
ation  applies,  and  not  to  cases  where,  however  manifest  the 
object  of  the  AcC  may  be,  the  language  is  not  co-extcnsivc 
with  it  (rt).  An  Act  of  Parliament  is  always  subject  to  evasion 
in  this  sense  ;  for  there  is  no  obligation  not  to  do  what  the 
Legislature  has  not  really  prohibited.  Thus,  a  hiring  for  a 
few  days  less  than  a  year,  though  avowedly  for  the  purpose 
of  preventing  the  servant  from  acquiring  a  settlement,  was 
not  regarded  as  any  evasion  of  the  Act,  which  gave  a  settle- 
ment on  a  year's  service  {h).  Where  a  testator  after  devis- 
ing a  piece  of  land  in  a  certain  hamlet  in  fee  simple,  directed 
that  if  any  person  sliould,  within  twelve  months  after  the 
testator's  decease,  at  his  or  her  own  expense,  purchase  and 
give  a  suitable  piece  of  land  for  almshouses,  the  trustees  of 
the  will  sliould  pay  a  sum  of  money  to  the  charity  so  in- 
stituted, but  so  that  no  part  should  be  laid  out  in  the  purchase 
of  land,  it  was  held  that  the  bequest  was  valid,  and  did  not 
fall  within  the  Mortmain  Act  (c).  And  again,  where  a  tes- 
tator devised  land  to  two  persons  absolutely,  and  signed  an 
unattested  paper  expressing  a  desire,  with  which  they  were 
unacquainted  until  after  his  death,  that  it  should  be  applied 
to  charitable  purposes,  it  was  held  that  the  devise  was  valid, 
iind  did  not  fall  within  the  Mortmain  Act;  for  there  was  no 
binding  trust  for  charitable  purposes  {d). 

It  is  not  evading  an  Act  to  keep  outside  of  it  {/). 
Although,  for  instance,  a  beershop-keeper  who  is  licensed  to 
€ell  beer  only  to  be  drunk  off  the  premises,  evades  the  Act 
if  he  sells  beer  to  be  drunk  on  a  bench  which  he  provides 
for  his  customers  close  to  his  shop  ;  the  intention  making 
it,  substantially  and  in  effect,  a  sale  for  consumption  on  the 

(^)  See    ex.  gr.   Ethoringtnu    v.  Edwards  v.  Hall,  6  De  G.,  M.  &  G, 

AYilsou,  1  Ch.  D.  IGl  ;  aiul  Pondur  84,  2J  L.  J.  83.                        .  .^    ^ 

V  Lushinfftoa,    6  Cb.  D.  70,  4G  L.  (d)  Wallgrave  v.  Tebbs,  3  K.  & 

J-  317       =  J.  313.  2r>  L.  .].  2-41. 

(b)  li  V  Little  Coixirleshall,  G  M.  (')  Si'e  /'<•'•  Lord  Selborne  in  Mac- 

&S  2(34:  li.  V.  Muisley,   1  T.  li.  belb   v.  Ashley,   L.  11.  3  Sc.  App. 

g94  359.     See  ex.  gr.  Shepherd  v.  Hall, 

(r)  Philpott   V.  St.  Gcorge'.s  IIos-  3  Camp.  180;  King  v.  Low,  3  C.  »te 

pital,  G  il.  L.  338;  Dent  v.  Alleroft.  P.  630. 
30  Beav.  335,  31  Ij.  J.  311;  luul  see 


202  KVAsioN.  [§  145 

premises  (a)  ;  a  mere  sale  through  a  window,  to  a  person  who 
stood  on  the  road  outside,  would  not  be  an  evasion,  thougli 
the  l)ujcr  drank  the  heer  immediately  on  receiving  it  {b). 
An  enactment  which  imposes  a  duty  on  legacies  would  not 
extend  to  a  gift  to  take  effect  on  the  doner's  death,  made  by 
a  deed  which  contained  a  ))ower  of  revoking  the  gift ;  thougli 
such  a  gift  has  all  the  essential  incidents  of  a  legacy  (c).  The 
Act  which  required  that  all  bills  of  sale  of  personal  chattels 
should  be  registered  wiihin  twenty-one  days  from  execution, 
on  pain  of  being  void  against  creditors,  was  held  not  to  inval- 
idate an  arrangement  by  which  a  fresh  bill  of  sale  was  to  be 
given  every  twenty-one  days,  and  none  were  to  be  registered 
until  the  debtor  got  into  difficulties.  Although  such  an 
arrangement  was  considered  to  be  detrimental  to  the  interests 
of  the  revenue,  and  to  be  calculated  to  defeat  and  delay 
creditors,  and  so  was  contrary  to  the  general  policy  of  the 
Act,  since  it  left  the  debtor  apparently  the  owner  of  property 
which  he  had  transferred  ;  it  was  held  not  to  be  prohibited 
by  its  language,  and  the  last  bill  of  sale,  which  was  duly 
registered,  was  held  valid  against  an  execution  creditor  {d). 

§  li5.  [So,  an  act  forbidding  the  purchase  of  land  on 
account  of  the  United  States,  except  under  a  law  authorizing 
such  purchase,  does  not  prohibit  the  acquisition  by  the 
United  States,  either  directly  or  through  the  intervention  of 
a  trustee,  of  the  title  to  land  taken  by  way  of  security  for  a 
debt.'"  xVn  act  forbidding  preferences  in  assignments  for 
the  benetit  of  creditors  does  not  invalidate  such  preferences 
by  way  of  judgments  given  for  that  purpose  though  in- 
tended to  be,  and  actually,  followed  by  an  assignment ;'" 
nor  by  way  of  mortgage ;'""  and  where  A  and  B,  partners, 
holding  a  large  amount  of  money  belonging  to  C,  made  a 
declaration  of  trust  of  real  and  personal  property  belonging 

(a)  Cross  V.  "Watts,  32  L.  J.  C.  P.  (d)  Smale  v.  Burr,  L.  U.  8  C.  P. 
73  13  C.  B.  N.  S.  239.  See  also  G4;  Q.  B.  17;  conip.  Exp.  Cohen, 
Bri'ulen  v.  Ileighes,  1  Q.  B.  D.  L.  R.  7  Cli.  20;  Exp.  Stevens,  L. 
a;>o'  K.  20  Eq.  786;  Ramsdeu  v.  Lupton, 

(b)  R.  V.  SehofieUl,  L.  R.  3  Q.  B.  L.  R.  9. 

8;  Bath  v.  White,  3  C.  P.  I).  175.  '"  Neilson  v.  Lagow,   12  How. 

(c)  Tompsoa  v.  Browne,  3  M.  «fc  98.                                   „     „     .,„ 
K.  32.     [See,  however,  ante,  §  140,  "=»  Blakey's  App.,  7  Pa.  St.  449. 
as  to  construction  of  collateral  in-  J'^  Johnson's  App.,  103  Pa.  St. 
beritaucetax  act  in  Pennsylvania.]  373. 


EVAt^ION. 


205 


§145] 

to  them  in  favor  of  C,  and  subsequently  dissolved  partner- 
ship, A  retiring  and  naming  J>  to  receive  the  property  and 
pay  all  firm  and  joint  dehts,  and  latt-r  Ji  made  a  declaration 
of  trust  similar  to  the  first,  in  which  he  and  another  were 
trustees,  and  an  agreement  with  C,  by  which  the  latter  was 
to  receive,  through  the  trustees,  the  property  of  B,  subject  to 
the  incumbrances  thereon,  In  payment  of  the  amount  due 
by  A  and  13,  and  by  B,  whose  debts  were  to  be  paid  out  of 
the  proceeds  of  the  property,  which  was  to  remain  in  the 
hands  of  the  trustees,  to  whom  all  deeds  and  transfers  of 
the  real  and  personal  property  were  made,  it  was  held  that 
this  was  not  a  general  assignment  for  the  benefit  of  creditors^ 
but  a  sale  with  a  security  analogous  to  a  mortgage  for 
purchase-money."" 

[Under  a  statute  prohibiting  a  nuirried  woman  from  exe- 
cuting, without  her  husband's  joinder,  any  conveyance  of 
her  real  estate,  or  any  instrument  incumbering  the  same,  it 
was  held  that  she  might  nevertheless  create  a  term  of  years 
in  her  lands  without  her  husband's  co-operation/"  A 
statute  forbidding  a  sale  by  a  wife  to  her  husband  does  not 
forbid  a  gift  ;'"  and  one  prohibiting  a  married  woman  from 
mortgaging  or  incumbering  her  real  estate,  acquired  by 
devise,  descent  or  gift,  as  security  for  her  husband's  debts, 
does  not  prevent  her  conveying  her  real  estate,  so  acquired, 
inpayment  of  such  debts;"'  nor  from  mortgaging  or  incum- 
bering such  as  was  acquired  by  her  by  contract  or  purchase.'"]. 
In  all  such  cases,it  is,  in  truth,  rather  the  particular  transaction 
than  the  Statute  which  is  the  subject  of  construction.  If  it 
is  found  to  be  in  substance  within  the  Statute,  it  is  not 
suffered  to  escape  from  the  operation  of  the  law  by  means  of 
the  disguise  under  which  its  real  character  is  masked.     [If, 

"0  Fallon's  App.,  42  Pa.  St.  235.  81.  ,     ^,    t  ^ 

1"  Sullivan  V.  Barry,  46  N.  J.  L.  ''•'  Frazer  v.    Clifford,   94  Ind. 

1.  S.  P.,  I'earcy  v.  Ilenlcy,  82  Ind.  483.    See,  however,  as  to  the  mean- 

129      And  see  Parent  V.  Callarand,  iug   of   the    word    "gift"    lu   an 

64  ill.  97;  Perkins  v.  Morse,  78  Me.  enabling  statute,  ante,  §  103.  Cl.ap- 

17-   Stone     v.  Stone,    1    R.  1.  425.  man  v.  Miller,  128  Mass.  269.    And 

Bu't  see  Buchanau  v.  Hazzard.  95  that  a  prohibition  against  becom- 

Pa.  St.  240;    Inui-s  V.   Templetou,  ing  surely  lor  another's  tlebls  tloes 

Id.  262  ;  iMiller  v.  Harbert,  6  Pliila.  not  incapacitate  a  married  woniau 

(Pa.)  531.  to  mortgage  her  real  estate  for  the 

'^-  Caiii  v.  Ligon,  71  Geo.   692.  same,  see  aute,  §  124. 

'"  Kochcr  V.  Uhristiau,  88  Ind. 


204:  abusp:  of  povvek.  [§§  146,  147 

on  the  other  hand,  the  substance  of  the  transaction  is  found 
to  be  bej'ond  the  reacli  or  outside  the  scope  of  the  enact- 
nienf,  the  reserabUince  to  that  wliich  is  prohibited,  or  even 
the  fact  that  the  hitter  may,  in  some  sense,  embrace  the  for- 
mer, will  not  bring  it  within  the  statute.'"] 

§  146.  Presumption  against  Permitting  Abuse  of  Power. — On 
the  same  general  principle,  enactnieuts  which  confer 
powers  are  so  construed  as  to  meet  all  attempts  to  abuse 
them,  either  by  exercising  them  in  cases  not  intended  by 
the  statute,  or  by  refusing  to  exercise  them  when  the  occa- 
sion for  their  exercise  has  arisen  (a).  Though  the  act  done 
was  ostensibly  in  execution  of  the  statutory  power,  and 
within  its  letter,  it  would  nevertheless  be  held  not  to  come 
w^ithin  the  power,  if  done  otherwise  than  honestly,  and  in 
the  spirit  of  the  enactment.  For  instance,  the  power  given 
by  modern  Bankrupt  Acts  to  a  majority  of  creditors  to  make 
arrangements  with  their  debtor,  which  are  made  by  statute 
binding  on  the  non-assenting  minority,  would  not  be  validly 
exercised  so  as  to  have  this  binding  effect,  if  the  conduct 
of  the  majority  were  tainted  with  fraud  ;  or  even  if  from 
motives  of  benevolence,  the  majority  had  agreed  to  a  com- 
position disproportioned  to  the  assets  {b). 

§  147.  Judicial  Discretion.— W here,  as  in  a  multitude  of 
Acts,  something  is  left  to  be  done  according  to  the  discre- 
tion of  the  authority  on  whom  the  power  of  doing  it  is  con- 
ferred, the  discretion  must  be  exercised  honestly  and  in  the 
spirit  of  the  statute,  otherwise  the  act  done  would  not  fall 
within  the  statute.  "  According  to  his  discretion,"  means 
it  is  said,  according  to  the  rules  of  reason  and  justice,  not 
private  opinion  (c) ;  according  to  law  and  not  humor;  it  is 
to  be,  not  arbitrary,  vague  and  fanciful,  but  legal  and 
regular  {d) ;  to  be  exercised  not  capriciously  but  on  judicial 

"'  As  to  when  a  construct ioa  4  Ch.  D.  293  ;  Exp.   Aaronson,  7 

permittini^evasion  will  be  required,  Ch.  D.  713;  Exp.  Bali,  51  L.  J.  Ch. 

see  post.  §  252.  911  ;  Exp.  Russell.  22  Ch.  D.  778. 

to)  See  ?;fr  Turner.  L.  J.,  in  Bid-  (^)  Ilr)oke's  Case,    5   Rep.   100a; 

dalpii   V.   St.   George's  Vestry.  33  Keighley's    Case.    10   Rep.    140a ; 

L.  J.  Ch.  411.  Eee  v.  Biide  R.  Co.,  L.   R.  6  C.  P. 

(b)    Exp.   Co  wen.   L.    R.    2  Ch.  570.  per  Willes,  J. 

■563  ;  see  per  Lord    Cairns,    570  ;  ((/)  Per  Lord  Mansfield  in  R.  v. 

Exp.    Russell,  L.   R.   10  Ch.  255 ;  Wilkes.  4  Burr.  2839. 
lie  Page,  2  Ch.  D.  323  ;  Ee  Terrell, 


§  147]  ABDSE  OF  POWER.  205- 

grounds  and  for  substantial  reasons  (a),  ["  Appeals  to  the 
discretion  of  judi,^es  in  tlie  exercise  of  their  jurisdiction," 
says  a  late  eminent  judge  in  rcnnsjlvania,  " -ire  sometimes 
made  under  an  apparent  impression  that  they  are  at  liberty 
to  admit  the  influence  of  those  appeals  as  fully  as  the  Legis- 
lature or  the  Governor  of  the  State.  But  in  general  judges 
have  no  discretionary  authority  beyond  that  connected  with 
the  mere  conduct  of  the  business  of  their  tribunal.  And 
wherever  such  discretion  of  authority  is  conferred  upon 
them  in  reference  to  subjects  outside  of  their  peculiar 
duties,  it  is  always  presumed  by  the  Legislature  that  it  will 
be  exercised  in  accordance  with  judicial  usages  and  upon 
uniform  and  established  rules.  .  .  Acting  upon  settled 
rules,  the  bar,  suitors  and  community  can  depend  upon 
steady  and  permanent  action.  .  ,  In  the  administra- 
tion of  justice,  there  is  nothing  that  properly  could  be 
tern)ed  discretion.  Mere  discretionary  power  has  always 
been  mere  despotism.  In  all  subjects,  some  established  and 
recognized  principles  control  the  courts.  .  .  Any  other 
course  of  action  would  destroy  the  very  characteristics  of 
a  judicial  tribunal — it  would  leave  each  successive  ques- 
tion to  be  settled  by  impulse,  prejudice  and  caprice — 
and  would  in  one  word  leave  the  community  without  law.'"" 
In  another  case  it  was  said  :  "  The  act  of  assembly  leaves  it 
to  the  discretion  of  the  court,  whether  or  not  to  admit  an 
alteration  of  the  pleading;  I  mean  their  legal  discretion, 
founded  on  good  reason.""'  So,  where  a  statute  authorizes  a 
court,  in  certain  cases,  to  render  such  judgment  as  substan- 
tial justice  shall  require,  it  means  substantial  legal  justice, 
ascertained  by  fixed  rules,  and  not  by  the  varying  notions  of 
abstract  equity  entertained  by  each  individual.'"  But  it  was 
held,  in  the  case  of  a  special  act  permitting  a  party  to  file  a 
bill  as  in  chancery,  and  requiring  the  court  to  decide  the 
controversy  "'  on  the  principles  of  justice  and  good  faith," 
that  the  court  was  at  liberty  to  adjust  the  matter,  regardless 

(a)  P^r  Jesse],  M.  R.,  in  re  Tay-  tors,  1  Woodw.  (Pa.)  270,  271-3, 

lor,  4  Cli.   D.   IGO  ;   and  per  Lord  per  Woodward,  P.  J. 

Blackburn  in  Dolierty  v.  AUman,  '"  Lyons  v.  ^Miller  4  Ser"  &  R 

3  App.  728.  (Pa.)  379,  281,  per  Tili^hman,"  U.  j! 

'"ife  Report   of  County  Audi-  '^«  Stevens  v.  Ross,  1  Cal.  94. 


20G  ADUSK  OF  POWER.  [§  148 

of  technical  rules,  upon  principles  us  liberal  as   the  Legisla- 
ture itself  might  have  adopted.'" 

§  148.  Limits  of  Discretion  Conferred  on  Officers. — [Where  a 
discretion  is  thus  conferred  upon  an  ofiicer,]  it  must  be  exer- 
cised within  the  limits  to  which  an  honest  man  competent  to 
the  discharge  of  his  office  ought  to  confine  himself  (a)  ;  that 
is,  within  the  limits  and  for  the  objects  intended  by  the 
legislature.  Thus,  it  was  long  ago  settled  that  the  power 
given  by  the  43  Eliz.  to  the  overseer  of  parishes  to  raise  a 
poor  rate  by  taxation  of  the  parishioners  in  such  competent 
sums  as  they  thought  fit,  did  not  authorize  an  arbitrary  rate 
on  each  parishioner,  but  required  that  the  rates  should  be 
equal  and  proportionate  to  the  means  of  the  contributors  (b). 
So,  the  Highway  Act,  5  &  6  AVill.  4,  c.  50,  which  })rovided 
that  if  any  com])laint  was  made  against  the  road  surveyor's 
accounts,  the  justices  at  special  highway  sessions  should  hear 
it,  and  "  make  such  order  thereon  as  to  them  should  seem 
"  meet,"  would  not  authorize  them  to  allow  illegal  expenses, 
such  as  a  charge  for  the  use  of  the  surveyor's  horses, 
contrary  to  section  46,  which  are  expressly  forbidden  to  be 
incurred  at  all  (c).  Under  an  enactment  that  no  license 
should  be  refused  by  justices  except  on  one  or  more  of  four 
specified  grounds,  it  was  held  that  justices,  in  refusing,  were 
bound  to  state  on  which  of  the  grounds  they  based  their 
refusal,  as  otherwise  they  might,  in  abuse  of  their  powers, 
refuse  on  other  grounds  than  those  to  which  they  were 
limited  {d). 

[And  it  must  be  exercised  in  a  reasonable  manner.""  Hence 
it  would  seem  that  statutes  conferring  upon  certain  officers  or 
municipal  boards  the  power  of  removing  subordinate  officers 
for  cause,  require,  as  a  condition  precedent  to  the  exercise  of 
the  power,  notice  and  hearing  to  be  given  to  the  delinquent. '°'J 

"9  Scely  V.  Ohio,  11  Ohio,   501  ;  Whitchurch   v.  Fiilham  Board,  L. 

12  Id.  49(5.  R.  1  Q.  B.  233,  35  L.  J.  145. 

(a)  Per  Lord  Kenyon  in  Wilson  (c)  Barion  v.  Pi^ott,  L.  R.  10  Q. 

V.    liastalJ,    4    T.  R.    757  ;    R.    v.  B.  80,  44  L.  J.  M.  C.  5. 

Audlcy,  Salk.  526  ;   R.  v.  Wavell,  {d)  32  &  33  Vict.  c.  27,  s.  8  ;   R. 

Doug.  115.  V.    Sylves,    1  Q.   B.  D.   52.      Exp. 

(6)   Early's     Case,    Bulstr.    354  ;  Smith,  3  Q.  B.  D.  374. 

Marshall  v.  Pitman,  9  Bing.    001.  i**"  Lash  v.  Von  Ncida,   109  Pa. 

See  .Tones  v.  Mersey  Docks.  35  L.  St.  207. 

J.  M.    C.  1  :  11   H.    L.    443  ;   and  "*'  See  Ham  v.  Boston  Board  of 


§  140]  ABUSE  OF  POWER.  207 

S  149.  Discretion  to  be  Exercised  in  Individual  Cases. — Wlicrc 
tlie  discretion  lias  been  settled  Ijy  pnictiee,  this  shoidd  not 
be  departed  from  without  strong  reason  (a).  [Hence, 
althoiiirh  a  statute  left  it  to  the  discretion  of  the  court 
whether  or  not  to  admit  an  alteration  of  the  pleadings,  it 
was  held,  that,  a  defendant  having  passed  over  his  time  for 
putting  in  a  plea  uf  plaintiff's  coverture  pending  the  action 
(a  matter  which  should,  according  to  established  rules  of 
practice,  be  pleaded  puis  darrein  continuance.)  the  court  prop- 
erly rejected  a  motion  for  permission  to  make  the  plea  dur- 
ing trial.'**  And  upon  similar  grounds  an  application  for 
the  amendment  of  a  declaration  in  assumpsit  for  goods  sold 
and  delivered,  by  the  addition  of  counts  for  money  lent  and 
work  and  labor  done,  was  denied,  whilst  the  addition  of 
counts  for  money  had  and  received  and  upon  an  account 
stated  was  allowed.'"]  But  if  a  statute  confers  a  power,  with 
the  intention  that  its  exercise  shall  be  subject  to  the  discre- 
tion in  every  particular  case,  an  exercise  of  it  in  the  fetters 
of  self-imposed  rules,  purporting  to  bind  in  all  cases,  would 
not  be  within  the  Act.  Thus,  where  an  Act  gave  the  Court 
of  Quarter  Sessions  power,  if  it  thought  fit,  to  give  costs  in 
every  poor  law  appeal,  it  would  be  bound  to  exercise  a  fair 
and  honest  discretion  in  each  case,  and  would  not  be  entitled 
to  govern  itself  b}'  a  general  resolution,  or  rule  of  practice, 
to  give  nominal  costs  in  all  cases  {h)  ;  for  this  would  be  in 
effect  to  repeal  the  provision  of  the  Act.  So,  a  licensing 
Act,  which  empowered  justices  to  grant  licenses  to  innkeep- 
ers and  others,  to  sell  liquors,  as  in  tlie  exercise  of  their  di?- 
-cretion  they  deemed  proper,  would  not  justify  a  general 
resolution  to  refuse  licenses  to  all  persons  who  did  uot  con- 
sent to  take  out  an  excise  license  for  the  sale  of  spirits,  in 
addition  to  the  license  for  the  sale  of  beer  (c).  [This  sub- 
Police,  142  Mass.  90  ;  and  see  An-  '^^  Triebel  v.  Deysher,  3  Woothv. 
drcws  V.  Kinsr.  77  Me.  224.     Ante.      (Pa.)  15. 

^  51.     Compr  Eckloff  v.  Distr.  of         {b)  R.  v.  IMerioncth,  C  Q.  B.  163; 
Columbia,  4  Mackey  (D.  C.)  572.         R.  v.  Glamorganshire,    1   L.  M.  & 

(a)  2  Inst.  2i)8.     Sve  R.  v.  Chap-      P.  336;  comp.  Frocman  v.  Read,  9 
man.   8  C.   &  P.  558.     [See  also      C.  B.  N.    S.    301,   30   L.  J.  M.  C. 
Jie  Report    of    Co.     Auditors,    1      123. 
Woodw.  (Pa.)  270.1  (c)  R.    v.    Sylvester.   2  B.    &  S. 

i6'^  Wilson   V.  Hamilton,  4  Serg.      322.  31  L.  J.  M.  C.  93;   R.  v.  Wal- 
4&  R.  (Pa.)  238.  sail,  3  Com.  L.  R.  100. 


208  ABUSE  OF  POWER.  [§  149 

jcct  has  received  elaborate  examination  at  the  hands  of  tlie 
Supreme  Court  of  Pennsylvania,  in  a  case  decided  in  1872. 
It  arose  under  an  act  conferring  upon  the  board  of  licensers 
of  tlie  city  of  Erie  "  the  same  power  and  authority  to  grant 
licenses  in  the  said  city  of  Erie  as  the  court  of  Quarter  Ses- 
sions now  has."  The  various  acts  under  which  that  court 
exercised  its  jurisdiction  in  the  granting  of  licenses  required 
that  the  court  should  grant  no  license  when  the  public  house 
for  which  it  was  asked  was  unnecessary  or  insufficient  in  the 
point  of  accommodation,  or  where  the  person  by  whom  it 
was  sought  for  was  unfit,  and  directed  that  it  should  be  law- 
ful for  the  court  to  hear  petitions,  in  addition  to  that  of  the 
applicant,  for,  and  remonstrances  against  the  ap])]ication,and 
in  all  cases  to  refuse  the  same,  whenever,  in  its  opinion, 
having  due  regard  to  the  number  and  character  of  tlie  ])eti- 
tioners  for  and  against  the  application,  such  license  was  not 
necessary  for  the  accommodation  of  the  public,  etc.,  and^ 
upon  sufficient  cause  shown,  to  revoke  any  license  granted. 
"No  subject,"  says  the  Court,  "has  been  productive  of 
more  difference  of  opinion  and  practice  than  this,  in  the 
different  judicial  districts  of  the  state  ;  some  judges  holding 
it  to  be  obligatory  on  the  court  to  grant  every  license  where 
the  applicant  has  brought  himself  within  the  provisions  of 
the  law  as  to  the  terms  of  his  application,  and  others  hold- 
ing that  they  are  not  bound  to  grant  any  license  whatever. 
Clearly  neither  opinion  is  right ;  the  discretion  which  the 
court  exercises  being  a  sound  discretion  upon  the  circum- 
stances of  each  case  as  it  is  presented  to  the  court,  and  not 
a  general  opinion  upon  the  propriety  or  impropi-iety  of 
granting  licenses.  Whether  any  or  all  licenses  should  be 
granted  is  a  legislative,  not  a  judicial  question.  Courts  sit 
to  administer  the  law  fairly,  as  it  is  given  to  them,  and  not 
to  make  or  repeal  it.  The  law  of  the  land  has  determined 
that  licenses  shall  exist,  and  has  imposed  upon  the  court  the 
duty  of  ascertaining  the  proper  instances  in  which  the 
license  shall  be  granted,  and  therefore  has  given  it  to  the 
court  to  decide  upon  each  case  as  it  arises  in  due  course  of 
law.  The  act  of  deciding  is  judicial,  and  not  arbitrary  or 
wilful.      The  discretion  vested  in  the  court  is,  therefore,  a 


§  150]  ABUSE  OF  POWER.  209 

jiidicinl  discretion  ;  and  to  bo  a  riglitfnl  judgment  it  must 
be  exercised  in  the  particular  case  and  upon  the  facts  and 
circumstances  before  the  court,  after  they  Ir-vve  been  lieard 
and  duly  considered  ;  in  other  words,  to  be  exercised  upon 
the  merits  of  each  case,  according  to  the  rule  given  by  the 
Act  of  Assembly.  Tc^  say  that  I  will  grant  no  license  to 
any  one,  or  that  I  will  grant  it  to  every  one,  is  not  to  decide- 
judicially  on  the  merits  of  the  case,  l)ut  to  determine  before^ 
hand  without  a  hearing,  or  else  to  disregard  what  has  been 
heard.  It  is  to  determine,  not  according  to  law,  but  outside 
of  law,  and  it  is  not  a  legal  judgment,  but  the  exercise  of  an 
arbitrary  will.'"'' 

§  150.  [Upon  a  similar  question,  where  an  act,]  after 
fixing  the  hours  within  which  intoxicating  liquors  might  be 
sold,  authorized  the  licensing  justices  to  alter  the  hours  in 
any  particular  locality,  within  the  district,  requiring  other 
hours ;  it  was  held  that  they  had  no  right  to  alter  the  time 
in  every  case  by  virtue  of  a  general  resolntion  to  which  they 
had  come  {a).  And  though  their  resolution  was  limited  to 
a  portion  of  the  locality,  yet  as  this  portion  comprised  every 
licensed  house  of  the  whole  district,  the  limitation  was 
regarded  as  a  mere  attempt  to  evade  the  Act.  The  statute 
required  them  to  decide,  in  the  honest  and  bona  fide  exercise 
of  their  judgment,  what  particular  localities  required  other 
hours  for  opening  and  closing,  than  those  specified  ;  and 
they  were  bound  to  satisfy  themselves  that  the  special  cir- 
cumstances of  the  particular  locality,  which  they  took  out 
of  the  general  rule  laid  down  by  Parliament,  required  that 
the  exception  should  be  made  {h).  The  statute  had  laid 
down  a  general  rule,  and  permitted  an  exception  ;  but  here 
the  exception  had  swallowed  np  the  rule ;  and  that  which 
might  fairly  have  been  an  exercise  of  discretion,  became  no 
exercise  of  the  kind  of  discretion  meant  by  the  Act  (c). 

'84  Sclilaudecker  v.  Marshall,  72  (b)  See  the  judcment  of  Lord  Sel- 

Pa.  St.  200,  206-7,  per  Agncw,  J.  borne.  Id.  359. 

(a)  lAIacbcth   v,  Ashley,    L.  R.  2  (c)  Per  Lord  Cairns,  L.  R.  3  Sc. 

Sc.  App.  352.  App.  357.     [See  Addenda.] 

14 


210  JURISDICTIONS.  [§  151 


CHAPTER    YI. 

Presumptions  as  to  JuRTf:r)roTit)Ns,  Government,  Excess  of 

Legislative  Functions  and  Powers,  Yiolatton  of 

International  Law,  Treaties  and 

Constitution. 

§  151.  Presumptioa  against  Ousting  Jurisdictions.     Superior  Courts. 

§  152.  Justices  of  the  Peace  and  Inferior  Courts. 

§  153.  Ouster  of  Jurisdiction  by  implication. 

^5  154.  Exclusive  Statutory  Jurisdictions  and  Ilemedies. 

§  155.  Presumption  against  Creating  New  Jurisdictions  and  Remedies, 

§  156.  Effect  to  be  given  to  Necessary  Implication. 

§  157.  New  Jurisdictions  and  Remedies  not  Extended  by  Construction. 

§  158.  Summary  Jurisdictions. 

§  159.  United  States  Courts. 

§  160.   Special  Jurisdictions. 

§  161.  Presumption  against  Intent  to  Affect  Government.     Eminent 

Domain. 
§  163.  Statutes  Imposing  Taxation. 
§  164.  Statutes  of  Limitations. 
§  165.  Municipalities. 
j5  106.  When  Government  is  Included. 
§  109.   Statutes  presumed  to  have  no  extra-territorial  force. 
§  170.  Exceptions. 
§  171.  Presumption  against  Intent  to  Exceed  Legislative  Functions  and 

Powers.     Natural  Laws. 
§  173.  Presumption  against  Inva.sion  of  Judicial  Functions. 
§  178.  Presumption  against  Intent  to  Bind  Future  Legislatures. 
§  174.  Presumption  against  Violation  of  International  Law.     Treaties. 
§176.  Rights,  etc.,  of  Foreigners.     Remedies. 
§  178.  Presumption  against  Intent  to  Violate  Constitution. 
§  179.  Restriction  of  Language  to  Conform  with  Constitution. 
§  180.  Limits  of  Rule. 
§  181.  Statute  and  Constitution  to  be  Construed  Together. 

§  151.  Presumption  against  Ousting  Jurisdictions.  Superior 
Courts.— It  is,  perhaps,  on  the  i«;eiiorul  presuuiptioii  against 
an  intention  to  disturb  the  established  state  of  the  law,  or 


g  151]  JURISDICTIONS.  211 

to  interfere  with  tlie  vested  rights  of  tlie  subject  («),  tliat  the 
strong  leaning  now  rests  against  construing  a  statute  as  oust- 
ing or  restricting  the  jurisdiction  of  the  Superior  Courts  ; 
although  it  may  owe  its  origin  to  the  pecuniary  interests 
of  the  Judges  in  former  times,  when  their  emoluments 
depended  mainly  on  fees  {h).  It  is  supposed  that  the  legis- 
lature would  not  moke  so  important  an  innovation,  without 
a  very  explicit  expression  of  its  intention.  It  would  not  be 
inferred,  for  instance,  from  the  grant  of  a  jurisdiction  to  a 
new  tribunal  over  certain  cases,  that  the  legislature  intended  to 
deprive  the  Superior  Court  of  the  jurisdiction  which  it 
ah-eady  possessed  over  the  same  cases.  Thus,  an  Act  which 
provided  that  if  any  question  arose  upon  taking  a  distress,  it 
should  he  determined  by  a  commissioner  of  taxes,  would  not 
thereby  take  away  the  jurisdiction  of  the  Superior  Court  to 
try  an  action  for  an  illegal  distress  (c).  Nor  would  that 
Court  be  ousted  of  its  preventive  jurisdiction  to  stop  by  in- 
junction tlie  misapplication  of  poor  rates,  by  the  power 
given  to  the  poor  law  commissioners  by  statute  to  determine 
the  propriety  of  all  such  expenditure  (d).  It  did  not  follow 
in  either  case,  that  because  authority  was  given  to  the  com- 
missioners, it  was  taken  away  from  the  Court.  [So,  a  grant 
to  the  councils  of  a  municipality,  of  power  to  open  streets, 
does  not  operate  as  a  repeal  of  that  power  conferred  by 
former  acts  upon  the  Courts  of  Quarter  Sessions.'  An  act 
which  extended  the  equity  jurisdiction  of  the  Supreme 
Court  of  Pennsylvania  and  of  the  Courts  of  Common  Pleas 
in  Philadelphia  County  to  causes  based  on  accounts,  etc.,  was 

{a)  See  Jacobs  v.  Brett.  L.  R.  20  B.  122. 

Eq.  1.      [See,  also,  Overseers    v.  (d)  Atty.-Genl.  v.  Southampton, 

Smith,  2  Serg.  &  R.  (Pa.)  363,  3G5,  17  Sim.  6.     See  Birley  v.  Choilton, 

3(57.]  3  Beav.  499;  Smith  v.  Whitmore, 

(b)  Per  Lord  Campbell  ia  Scott  1  llem.  &  M.  570,  2  De  Gex,  J.  & 
V.  Avery,  5  H.  L.  811,  25  L.  J.  S.  297,  33  L.  J.  713.  [See  People 
Ex.  308.  Soinconstruingcontracts,  v.  Vauderbilt,  24  How.  Pr.  (N.Y.) 
Scott  V.  Avery;  Tredwen  v.  Hoi-  301,  where  it  was  hold  that  a  statute 
man,  1  II.  &  C.  72,  31  L.J.  398;  Ed-  conferring  iKwer  to  remove  an  ob- 
warcls  V.  Aberayon  Insurance  Co.,  1  struction  wiien  erected,  does  not 
Q.B.  D.  503;  Dawson  V.  Fitzgerald,  take  away  the  right  of  the  courts 
Ex.  D.  257.  to  prohiliit  the  ereclion  thereof  be- 

(c)  43  Geo.  3,  c.  99;  Shaftesbury  fore  completed,  if  it  is  unlawful, 
V.  Russell,  1  B.  «fc  C.  GOG;  see,  also,  apart  from  the  statute.] 
Rochdale  Canal  Co.  v.  King,  14  Q.  '  Be  Twenty-eighth  Str.,  102  Pa. 

St.  140. 


212  JURISDICTIONS.  [§  152' 

held  not  repealed  by  a  later  act  giving  the  courts  of  Common 
Pleas  tiirongliont  the  state  chancery  jurisdiction  in  settling 
partncrsliip  accounts,  etc.;  nor  the  latter  by  an  act  giving 
jurisdiction  to  all  the  courts  of  Common  Pleas  of  several 
classes  of  cases,  including  accounts  which  cannot  be  settled 
by  actions  of  account  render.'     Statutes  giving  jurisdiction 
to  courts  of  law  previously  within  the  jurisdiction  of  courts 
of  equity,  do  not,  ordinarily,  where  the  language  of  the 
statute  is  affirmative  and  does  not  otherwise  provide,  destroy 
the  jurisdiction  of  the  latter  in  the  premises;'  the  principle- 
being  that  an  act  affirmatively  giving  jurisdiction  to  one 
court  is  not  to  be  understood  as  ousting  the  jurisdiction  pre- 
viously existing  in  another."     It  may  be  observed  that  this 
principle\applies  equally  to  constitutional  provisions  affecting 
the  jurisdiction  of,  6.  g.,  the  Supreme  Court  of  the  State,* 
whose  jurisdiction,  it  is  said,  can  be  taken  away  only  by  express 
words  or  irresistible  implication,^  whether  by  statute  or  b}'' 
the  constitution,*  and  whether  that  jurisdiction  be  original 
or  appellate."     As  a  result  of  the  strict  construction  flowing 
from  the  presumption  against  ousting  an  establislied  jurisdic- 
tion, it  follows  that  an  act  giving  an  exclusive  in  place  of  a 
former  concurrent  jurisdiction  is  not  to  be  construed  retro- 
spectively, if  its  language  can  fairly  bear  another  interpreta- 
tion." 

§152.  Justices  of  the  Peace  and  Inferior  Courts. — Acts  whicll 
give  justices  and  other  inferior  tribunals  jurisdiction  in 
certain  cases,  are  understood,  in  general,  when  silent  on  the 
subject,  as  not  atfectingthepowcr  of  control  and  supervision 
whicll  the  Superior  Court  exercises  over  the  proceedings  of 

2  Dick's  App.,  106  Pa.  St.  589.  <  Barnawell  v.  Tlircadgill,  supra. 
The  statutes  were,  respectively,  ^  For  a  recoguition  of  wiiich  see 
Act  13  Juno  1840,  g  i59;  Act  13  Oct.  Custer  Co.  v.  Yellowstone  Co.,  6 
1840.  §  19;  Act  14'Feb.  1857.  Mont.  39. 

3  Crawford  v.  Childress,  1  Ala.  «  gge  po^t,  §  533,  Com'th  v. 
483  ;  Wesley  Church  v.  j\Ioore.  10  Balph,  111  Pa.  St.  305. 

Pa.  St.  273 ;   Raudebaugh  v.  Shcl-  '  Overseers  v.  Smith,  2  Serg.  & 

ley,  6  Ohio  St.  307  ;   Barnawell  v.  R.  (Pa.)  303,  305. 

Threadgill,  5  Ired.  Eq.  (N.  C.)  80  ;  »  See  cases  iu  notes  6  and  7. 

Phipps    V.    Kelly,    12  Oreg.   213 ;  »  Ibid. 

McKoin     v.     Cooley,    3    Humph.  "» State  v.    Littlefield,  93  N.  C. 

(Tcun.)  559.      And  see  People  v.  614  ;   and   see  where  an  exclusive 

Vanderbilt,  24   How.  Pr.    (N.  Y.)  jurisdiction  is  made  concurrent,  to 

301;   Gibbes  v.  Beaufort,  20  S.  C.  the    same  effect:  Mc    Michael    v. 

213.     Also  post,  §  218.  Skilton,  13  Pa.  St.  215. 


§152] 


JURISDICTIONS. 


213 


Biich  tribunals.  [Thus  where  aii  act  authorized  the  sale  of 
the  property  of  a  married  man  deserting  his  wife  and  leav- 
ing her  a  charge  upon  the  public,  upon  the  order  of  two 
justices,  confirmed  by  the  Court  of  Quarter  Sessions,  it  was 
held  that  the  jurisdiction  of  the  Supreme  Coui't  to  review 
the  proceedings  upon  certiorari  (the  proceednig  being  statu- 
tory, and  therefore  properly  reviewable  by  certioiMri,"  unless 
the  jurisdiction  to  issue  the  writ  was  ousted  by  the  act,)  was 
not  taken  away,  either  expressl}'  or  by  irresistible  implica- 
tion, although,  as  to  other  matters  covered  by  the  act,  other 
sections  of  the  same  made  the  decisions  of  the  Quarter 
Sessions  final."  Acts  giving  such  inferior  jurisdictions]  are 
even  strictly  construed  when  their  language  is  doubtful  ;" 
[and  this  is  especially  so,  where  the  jurisdiction  conferred  is 
civil.'*]  Enactments  to  the  effect  that  "no  Court  shall 
intermeddle"  in  the  cases  {a),  or  that  the  case  shall  be 
"  heard  and  finally  determined  "  below  (h),  would  not  be 
construed  as  prohibiting  such  interference  ;"  and  enactments 
which  expressly  provide  that  such  proceedings  shall  not  be 
removed    by    certiorari    to   the     Superior    Court    have   no 


11  Parks  V.  Watts,  113  Pa.  St.  4. 

i''  Overseers  v.  Smith,  2  Serg.  & 
I?.  303. 

■^  Bigelow  V.  Stearns,  19  Johns. 
(N.  Y.)  39  ;  Davis  v.  Marshall, 
14  Barb.  (N.  Y.)  96  ;  Firm- 
'  stone  V.  Mack,  49  Pa.  St.  387; 
Campan  v.  Fairbanks,  1  ]Mlch. 
151  ;  Bargis  v.  State,  4  Intl.  126  ; 
Waketicld  v.  Slate,  5  Id.  195; 
O'Brien  v.  Slate,  12  lud.  369  ; 
Walker  v.  Wynne,  3  Yerg.  (Teun.) 
62  ;  and  see  Hersom's  Case,  ;;9  ]\Ic. 
476  ;  also  Bish.,  Wr.  L.,  g  197,  that 
statutes  creating  limited  jurisdic- 
tions should  be  sl'-ictlj''  construed, 
cit.  State  v.  Anderson,  2  Tenn. 
(2  Overt.)  6  ;  Shawnee  v.  Carter,  2 
Kan.  115  ;  Russell  v.  Wheeler, 
Hempst.  3  :  but  as  to  procedure, 
see  same  case,  ante,  J^  108,  note. 

!■*  All  civil  jurisdiction  in  jus- 
tices of  the  peace  is  essentially  slat- 
iitory  ;  it  has  no  common  law  root: 
see  Ellis  v.  White,  25  Ala.  540  ; 
Firmstone  v.  Mack.  49  Pa.  St.  387, 
392;  Willey  v.  Slrickland,  8  Iiul. 
453.  At  common  law,  justices  of 
the  peace  were  only  conservators 
:of  the  peace  :    H).     In   Searcy  v. 


Tillman.  75  Ga.  504,  it  was  held 
that  a  note  for  $100  and  ten  per 
cent,  attorney  fee  for  collection  was 
beyond  the  jurisdiction  of  a  jus- 
tice. 

(«)  R.  V.  Moseley,  2  Burr.  1011. 

(b)  R.  V.  Plowright,  2  Mod.  95  ; 
2  Hawk.  P.  C.  c.  27.  s.  23.  See 
Jacobs  v.  Brett,  L.  R.  20  Eq.  1  ; 
Chambers  v.  Green,  Id.  552 ; 
Ilawes  V.  Paveley,  1  C.  P.  D.  418; 
Bridge  V.  Branch.  Id.  633;  Oram 
V.  Brearcy,  2  E.\'.  D.  346.  [But 
see  Suell  v.  Bridgewater,  etc.,  Co., 
24  Pick.  (Mass.)  296,  where  an  act 
declaring  a  judgment  entered  in  a 
certain  proceeiling  to  be  "final" 
was  held  to  preclude  the  right  of 
appeal.] 

'5  Nor  does  the  grant  of  "  exclu- 
sive jurisdiction  "  over  certain 
offences,  to  a  police  court,  e.xchide 
the  authority  of  justices  of  the 
peace  to  receive  complaints  and 
issue  warrants  returnable  before 
that  court  against  persons  charged 
with  those  olTenct'S  :  Com'tli  v. 
O'Conncll,  8  Gray  (Mass.)  464;  and 
see  Exp.  Bishop,  4  Mo.  219. 


214  jumsDiCTiONS.  [§  1 52 

application  when  tlic  lower  tribunal  has  overstepped  the 
"limits  of  its  jurisdiction  in  making  the  order  (ci),  or  is  not 
duly  constituted  (Ji),  for  the  prohibition  obviously  applied 
only  to  cases  which  have  been  entrusted  to  tlie  lowoi- jui-isdic- 
tion  ;  or  where  the  party  who  obtained  the  order,  obtained  it 
by  fraud  (c).  [In  conformity  with  this  rule  was  tbe  con- 
struction of  an  act  I'elating  to  the  jui-isdiction  of  justices  of 
the  peace,  and  authorizing  the  issuing  of  writs  of  certi- 
orari by  courts  of  common  pleas  to  such  justices,  but  only 
within  a  certain  time,  and  with  a  proviso  that  the  judgment 
of  the  common  pleas  should  be  final,  and  that  no  writ  of 
error  to  the  Supreme  Court  should  issue  thereon  ;  another 
section  forbidding  the  issuance  of  any  writ  of  certio- 
rari out  of  the  Supreme  Court  to  any  justice  of  the  peace  in. 
any  civil  suit  or  action.  It  was  held  that  all  these  limita- 
tations  must  be  understood  as  extending  only  to  civil  actions,, 
because  in  those  only  was  jurisdiction  given  by  the  prece- 
dent parts  of  the  act ;  only  to  actions  which  vv'cre  essentially 
civil  actions,  and  not  to  actions  for  the  recovery  of  penalties 
by  proceedings  assimilated  to  those  for  the  enforcement  of 
civil  liabilities;  and  only  to  those  civil  proceedings  which 
were  instituted  under  the  provisions  of  that  act  itself,  and 
not  to  proceedings  instituted  before  justices  under  juris- 
diction conferred  by  other  and  later  acts  of  assembly,  or  by 
municipal  ordinances,  notwithstanding  these  made  the 
jurisdiction  exercisable  "  in  the  same  manner"  as  that  act 
directed.'"] 

(«)  R.  V.  Derbyshire,  2  Ken.  299;  -where  the  statutory  form  of    an 

11.  V.  Somersetshire,  2  15.  &  C  816;  order  or  proceeding   has  not  been 

11.   V.    St.    .Mbiins,  22  L.  J.  M.  C.  ]iroperly    pursued,    by   reason    of 

142  ;  K.  V.    Wood,  5  E.  &   B.  49;  wliicli   tiie  order  or  proceeding  is 

K.  V.  S.   Wales  R.   Co.,   KJ  Q.   B-  void,  it  may  yet  be  treated  as  void- 

988;   Penny  V.  S.  E.  R.  Co.,  7  E.  able,    and   a    certiorari    talieu    to 

«&  B.  «6(),  2a  L.  J.   Q.   B.  225  ;   R.  quasli   it  :   Fitch   v.   Comm'rs,    32 

V.  Hyde,  7  E.  &  B.  859,  21  ]j.  .1.  Wend.  (N.   Y.)  132.     And  it  was 

M.  C.  94  ;  Exp.    Bradlaugh,    9  Q.  held,  in  Re  Biuni.  1  Barb.  (K  Y.) 

B.  D.  509  ;  47  L.  J.  105.  187,  tliat  tlie  Supreme  Court  of  the 

{!))  R.  V.  Clieltenham,  1  Q.B.  4G7.  State  iiad  power  to  review,  upon 

(c)  R.  V.  Canibrid<j:e,  4  A.    &  E.  certiorari,    the    proceedings    of    a 

121,  ;x'r  Lord. Deiunan  ;  1{.  v.  Gill-  magistrate,   who,  -while  professing 

yard,  12  Q.  B.  527  ;  Colonial  Bank  to  exercise  a  jurisdictiou  conferred 

V.   Willan,  L.  R.  5  P.  C.  417.      [A  by  act  of  Congiess,  had  acted  in  the 

certiorari    does     not     lie    from    a  name  of  I  he  people  of  the  Slate,  by 

superior  loan  inferior  court  to  re-  writs  of  the  people  directed  to  State 

move  a  cause  merely  bv  reason  of  oflicers.] 

a  defect  of  jurisdiction  :  Fowler  v.  '«  Com'th  v.  Belts,  76  Pa.  St.  465 

Liud.^ey.  U  Dall.   fPa.)  411.      But 


§153] 


JURISDICTIONS. 


215 


§  153.  Ouster  of  Jurisdiction  by  Implication. — Thc  sajing  lias 
been  attributed  to  Lonl  Maii.sfidd  tlnit  nothing  but  express 
words  can  take  away  tiie  jurisdiction  of  the  Superior 
Courts  («);  but  it  may  eertaiidy  he  taken  away  also  by 
implication  {h).  Thus  a  provision  tliat  if  any  dispute  arises 
between  a  society  and  any  of  its  members  it  shall  be  lawful 
to  refer  it  to  arbitration,  ousts  the  jurisdiction  of  the  Courts 
over  such  disputes  (c).  It  is  obvious  that  the  provision, 
from  its  nature,  would  be  superfluous  and  useless,  if  it  did 
not  receive  a  construction  which  made  it  compulsory,  and 
not  optional,  to  proceed  by  arbitration.  [So,  where  a  statute 
conferred  upon  the  Orphan's  Court,  charged  exclusively 
with  the  settlement  of  decedent's  estates,  jurisdiction  in 
partition  of  decedent's  real  estate  among  persons  who  took 
by  descent  from  them,  it  was  held  that  its  jurisdiction  in 
such  cases  was  exclusive  and  ousted  the  jurisdiction  of  the 
courts  of  common  pleas."]  Where  an  Act  imposed  penal- 
ties and  took  away  the  certiorari ;  and  a  subsequent  one,  after 
increasing  the  penalties  and  extending  the  restriction  of  the 
first,  provided  that  all  "  thc  powers,  provisions,  exemptions, 
matters  and  things"  contained  in  the  earlier  should,  except 
as  they  were  varied,  be  as  effectual  for  carrying  out  the  latter 


where  the  authorities  are  collated 
and  examined.  And  see  Canghey 
V.  Pittsburgh,  12  Serg.  &  K.  (Pa.) 
58  ;  and  Bauer  v.  Augcny,  100  Pa. 
St.  429,  where  the  right  of  the 
Supreme  Court  to  issue  certiorari 
to  a  justice  in  a  case  not  falling 
■\vilhin  the  prohibition  of  the  act 
above  referred  to,  Act  20  3Iarcli 
1810,  was  exercised  unall'ected  bj' 
the  Constitution  of  1874.  On  tae 
other  hand,  the  provision  in  thc 
act  of  1810  (under  which  a  justice's 
jurisdiction  was  liiuiled  to  $100) 
that  thc  juilgment  of  the  common 
pleas  on  certiorari  should  be  final, 
was  not  repealed  by  the  act  of  1879 
enlarging  his  civil  jnrisdicliou  to 
$oOO  :  Pa.,  etc.,  Co.  v.  Stoughton, 
106  Pa.  St.  458. 

(a)  R.  V.  Abbot,  Doug.  553. 

(b)  Per  Ashurst.  J.,  in  Cates  v. 
Knight,  3  T.  1{.  442.  and  Shipman 
V.  lienbest,  4  'r.  H.  11(1  ;  per  .lessel, 
M.  K.  in  Jacobs  v.  Bictt,  L.  li.  20 
Eq.  6  ;  per  Pollock,  J3.,  in  Oram  v. 


Brearey,  2  Ex.  D.  348.  [See  also, 
to  this  effect  :  New  London,  etc., 
R.  K.  Co.  V.  II.  R.  Co.,  102  Mass. 
386,  389  ;  Overseers  v.  Smith,  3 
Serg.  &  R.  (Pa.)  363  ;  lie  Twenty- 
eightli  St.,  102  Pa.  St.  140.  149; 
Com'th  V.  Balph,  111  Id.  365;  Gra- 
ham V.  O'Pailon,  3  .AIo.  507.] 

(c)  Crisp  V.  Bun  bury,  8  Bing. 
394;  and  see  ^Marshall  v.  Nichols, 
18  Q.  B.  882.  21  L.  J.  Q.  B.  343  ; 
Boylield  v.  Porter,  13  East,  300  ; 
Exp.  Payne,  5  D.  &  L.  679  ; 
ArmitageV.  Walker,  2  K.  &  .1.  211; 
Reeves  v.  White,  17  Q.  B.  995,  21 
L.  J.  170;  Wright  v.  3IonarcU 
Investment  Soc,  5  Ch.  D.  726; 
Ilnckle  V.  Wilscm,  2  C.  P.  D.  410. 
Comp.  Rochdale  Canal  v.  King,  14 
Q.  B.  122. 

'"  McMichael  v.  Skilton,  13  Pa. 
St.  215;  Clawges  v.  Clawges,  3 
Miles  (Pa.)  34.  (Tins  rule  was, 
however,  changiHl  bv  the  act  of  21 
April,  1846.  P.  L.  426.)  And  see 
Graham  v.  O'Fallon,  3  Mo.  507. 


216  JURTSDIGTIONS.  [§  154 

Act  as  if  re-enacted  in  it ;  it  was  held  that  the  clause  whicli 
took  away  the  certiorari  was  incorporated  in  the  new  Act, 
and  consequently  that  the  jurisdiction  of  the  Superior  Courts 
was  ousted  {a).  [And  in  a  later  case  it  has  been  held  that 
an  act  providing  for  the  sunnnary  pnnishnicnt  of  a  seaman 
who  neglects,  without  reasonable  cause,  to  join  his  ship,  by 
implication  takes  away  any  other  previously  existing  rem- 
edy against  the  seaman  for  such  breach  of  his  contract.'* 
Similarly,  where  a  statute  imposed  a  fine  upon  any  person 
participating  in  the  loaning  of  public  money,  to  double  the 
nmount  embezzled,  this  remedy  was  held  exclusive  of  a 
civil  action  for  the  same  offense."] 

§  154.  Exclusive  Statutory  Jurisdictions  and  Remedies. — Where, 
indeed,  a  new  duty  or  cause  of  action  is  created  by  Statute, 
and  a  special  jurisdiction  out  of  the  course  of  the  common 
law — [a  particular  proceeding  not  theretofore  existing  to 
enforce  the  duty  imposed  or  to  vindicate  the  right  conferred,] 
is  prescribed,  there  is  no  ouster  of  the  jurisdiction  of  the 
ordinary  courts,  for  they  never  had  any  [and  it  follows  that 
the  statutory  remedy,  and  no  other,  must  be  strictly  pursued." 
So,  when  a  statute  creates  a  right  and  provides  a  specific 
mode    for    redress    of    injuries    caused    by   its   exercise," 

(a)  R.  V.  Pell,  1  B.  «fe  Ad.  380.  boat,  2  Iowa    460:    McKenzie  v. 

'8  Great  Northern,   etc.,   Co.  v.  Gibson,   73  Ala.   204;  Camden  v. 

Edgehill,  L.  K.  11  Q.  B.  D.  225.  Allen,  26  N.  J.  L.  398;  McKinney 

"  Hancock  Co.  v.  Bank,  33  Ohio  v.  Nav.  Co.,  14  Pa.  St.  65  ;  Moyer 
St.  194.  Compare,  however,  Salem  v.  Kirby,  14  Serg.  &  R.  (Pa.)  165 ; 
Turnp.,  etc.,  Co.  v.  Hayes,  5  Turnp.  Co.  v.  Brown.  2  Pen.  & 
Cush.  (Mass.)  458,  where  the  pro-  W.  (Pa.)  403;  Turnp.  Co.  v.  Mar- 
vision  of  a  charter  of  a  turnpike  tin,  12  Pa.  St.  362;  Philadelphia  v, 
company,  that  any  person  guilty  Wright,  lOOId.  235;Beltzlioover  v. 
of  certain  injuries  to  the  road  Gollings,  101  Id.  293;  White  v. 
should  pay  a  certain  fine,  was  held  McKeesport,  Id.  394;  People  v. 
not  to  take  away  any  common  law  Craycrot't,  2  Cal.  243;  Thurston  v. 
remedies  for  sucli  injury,  partly  Prentisi;,  1  Mich.  193;  State  v.  Cor- 
upon  the  ground,  that,  in  many  win,  4  Mo.  609;  Lang  v.  Scott,  1 
cases,  the  fine  would  be  a  wholly  Blackf.  (Ind.)  405;  McCormack  v. 
inadequate  compensation.  R.R.  Co.,  9  Ind.  283;  State  v.  Lof- 

2"  Vallaiice  v.  Falle,  L.  R.  13  Q.  tin,  2  Dev.  &  B.  (N.  C.)  31;  Bailey 

B.  D.  109;   Bailey  v.    Bailey,    Id.  v.    Bryan,    3  Jones  (N.    C.)  357; 

859;  Almy  v.  Harris,   5  .Jolins.  (N.  Pruden  v.  Grant  Co.,  12  Oreg.  308. 

Y.)175;  Renwick  V.  Morris,  7  Hill  ^i  Sudbury  Meadows  V.Middlesex 

(N.  Y.)  575;  Smith   v.  Lockwood,  Canal,  23  Pick.  (Mass.)  30;   Dodge 

13   Barb.  (N.  Y.)  209  ;   Dudley  v.  v.  Essex,  3  Met.  (Mass.)  380;  Spang- 

Mayhew,    3  N.  Y.  9;   Hinsdale  v.  ler's  App.,  04  Pa.  St.  387;  Ilenni- 

Larned,    16  Mass.   65;    Boston  v.  ker  v.  R.  R.  Co.,    29   N.  H.  147; 

Shaw,  1   Met.  (Mass.)  130;  Crosby  Spring  v,  Russell,  7  Me.  273.   but 

V.  Bennett,  7  Id.  17;  Ham  v.  Steam-  see  Fryeburg  Canal  v.  Frye,  5  Id. 


§155] 


JUKISDIOTIONS. 


217 


or  for  the  neglect  of  a  duty  coupled  with  the  grant  of  the 
privilege,"''  or  gives  a  right  of  action  for  an  injury  not  pre- 
viously actionable  by  plaintiff."  And  where  an  act  provides 
a  remedy  against  the  state,  never  liable  to  a  conunon  law 
action,  that  remedy  is,  of  course,  exclusive  of  all  others."] 
But  where  the  Act  directs  that  a  new  offence  which  it  creates 
shall  be  tried  by  an  inferior  Court  according  to  the  course  of 
the  common  law,  the  inferior  Court  tries  it  as  a  conunon  law 
-Court,  subject  to  all  the  consequences  of  common  law  pro- 
'jeedings,  and  subject  therefore  to  removal  by  writs  of  error, 
habeas  corpus,  and  certiorari ;  and  the  Superior  Court  would 
not  be  ousted  of  this  jurisdiction  (a). 

^  155.  Presumption  against  Creating  New  Jurisdictions  and 
Remedies.— As  it  is  presumed  that  the  Legislature  would  not 
effect  a  measure  of  so  much  importance  as  the  ouster  or 
restriction  of  the  jurisdiction  of  the  Superior  Court  without 
an  explicit  expression  of  its  intention,  so  it  is  equally  impro- 
iDable  that  it    would  create  a  new  [especially  a  new   and 


38.  Such  is  the  case  of  a  right  of 
action  given  by  statute  to  property 
owners  for  injuries  sustained  by 
tlieni  from  tlie  e.xercise  by  corpora- 
tions of  the  riglit  of  eminent  do- 
main delegated  to  tliem;  tlie  pro- 
ceedings prescribed  by  the  statute 
for  tlie  enforcemeut  of  the  claim 
being  exclusive  of  any  other 
remedy:  Hull  v.  R.R.  Co.,  21  Neb. 
371  and  cases  before  cited.  But 
the  restriction  to  such  statutory 
remedy  applies  only  where  the  cor- 
poration proceeds,  in  the  exercise 
of  its  rights,  in  accordance  with 
the  statutory  provisions  prescrib- 
ing the  manner  of  their  exercise. 
If  it  deviates  from,  or  ignores,  c.  r/., 
the  statutory  metliod  of  appropria- 
tion of  land,  which  alone  can  make 
its  possession  rightful,  it  is,  like 
an  J'  one  else  in  such  circumstances, 
a  mere  trespasser,  liable  to  the 
usual  common  law  remedies  by  the 
owner:  ibid.,  cit.  Omaha,  etc.,  R. 
R,  Co.,  V.  Menk.  4  Neb.  20,  34; 
Blaisdell  v.  AVinthrop.  118  Mass. 
138;  Ewiug  v.  St.  Louis,  o  Wall. 
418;  so  thai  the  owner  may  enjoin 
its  entry:  Omaha,  etc,  I{.  R.  Co., 
V.  Meuli,  supia;  Ray  v.  R.  R.  Co.. 
4  Neb.  439;  Cameron  v.  Supervis- 


ors, 47  Miss.  264;  Paris  v.  Mason, 
37  Tex.  447;  Floyd  v.  Turner,  23 
Id.  292;  Pierpoint  v.  Harrisville,  9 
W.  Va.  215;  or  may  bring  eject- 
ment: Hull  V.  R.  R.  Co.,  supra, 
cit.  Chic,  etc.,  R.  R.  Co.  v.  Smith, 
78  111.  90;  Smith  v.  R.  R.  Co.,  67 
Id.  191;  Chic,  etc.  R.  R.  Co.  v. 
Knox  College,  34  Id.  195;  or  tres- 
pass: see  Bethlehem,  etc.,  Co.  v. 
Yoder,  112  Pa.  St.  136;  Justice  v. 
R.  R.  Co..  87  Id.  28. 

"  Bailey  v.  Baile3^  L.  R.  13  Q.  B, 
D.  859;  Bassett  v.  Carleton,  32  Me. 
553;  Pittsb..  etc.,  Ry  Co.  v.  Com'th, 
101  Pa.  St.  192. 

'-'  So,  in  a  statutory  action  by  a 
widow  against  a  railroad  company 
for  the  death  of  her  husband,  she 
must  bring  herself  within  the  statu- 
tory recpiirements  uecessarj'  to  con- 
fcr  the  right  of  action,  and  they 
must  appear  in  her  petition  or  com- 
plaint: llarker  v.  llau.  &  St.  Jos. 
Ry  Co..  91  Mo.  86. 

-*  McKinney  v.  Nav.  Co.,  14  Pa. 
St.  65;  comp.  post,  §  168.  See  as 
to  strict  pursuance  of  statutory 
remedies  and  rights,  post,  §^  434, 
435,  465. 

(a)  Per  Lord  Mansfield  in  Hart- 
ley V.  Hooker,  Cowp.  524. 


218  JUKISDICTIONS.  [§  155> 

exclusive"]  jurisdiction  with  less  explicitness;  and  therefore 
a  construction  which  would  iinj)liedly  have  this  effect  is  to 
be  avoided  (a).  It  has  been  said  that  an  inferior  Court  is 
not  to  be  construed  into  a  jurisdiction  (h);  [that,  e.  g.,  the 
jurisdiction  of  a  magistrate  can  never  be  created  by  implica- 
tion fiom  the, phraseology  of  a  statute  assuming  it  to  extend 
to  a  ])articular  case.*®]  An  Act,  for  instance,  which  in  pro- 
viding that  compensation  should  be  made  to  all  who  sustained 
damage  in  carrying  out  certain  works,  enacted  that  "  in  case 
of  dispute  as  to  the  amount,"  it  should  be  settled  by  arbitra- 
tion, would  be  confined  strictly  to  cases  where  the  amount 
only  was  in  dispute,  but  would  not  authorize  a  reference  to 
arbitration,  where  the  liability  to  make  any  compensation 
was  in  dispute  (c).  [So,  under  an  act  authorizing  compulsory 
references  in  cases  requiring  "  the  examination  of  a  long 
account,'-  it  was  held  that  the  mere  fact  that  entries  in  books 
of  account  must  be  put  in  evidence  and  examined,  upon  the 
trial  of  a  case,  did  not  necessarily  make  the  case  one  that 
could  be  so  referred  ;"  but  the  case  must  be  one  in  which 
the  account  is  directly  involved.'"  It  is  even  said,  that  a 
failure  of  justice  is  not  a  sufficient  reason  for  construing  an 

■^^  Custer  Co.  v.  Yellow.stoneCo.,  construed  as  plainly  giving  justices 

6  Mont.  39.  jurisdiction  over  the  offence.     See 

(a)  AVarwick  v.  White,  Bunb.  Slable  v.  Dixon,  G  East,  163  ;  R.  v. 
106;  Kile  and  Lane's  Case,  1  B.  &  St.  James,  Westmr. ,  2  A.  *fc  E.  241  ;. 
C.  107,  per  Lord  Tciiterden  ;  K.  v.  R.  v.  Worcestershire,  3  E.  &  B. 
Baines,  2  Lord  Raym.  1260,  cited  488,  23  L.  J.  .AL  C.  113.  [Comp. 
by  Jjonl    Denman.  in  F]et(;her  v.  post,  ij  377.] 

Calthrop,  6  Q.   B.  801  ;  per  Best,  (c)  R.  v.  iMetrop.  Com.  Sewers, 

C.  J.,  in  Looker   v.    Ilalcomb,    4  1  E.  &  B.  604,  22  L.  J.  234.  Comp. 

Bing.  188.     See  R.  v.   Cotton,  1  E.  Bradley  v.  Southampton  Board,  4 

6  E.  203  ;  Exp.  Storey,  3  Q.  B.  D.  E.  &  B.  1014.  24  L.  J.  239  ;  R.  v. 
166.  Burs] em  Board,  1  E.  &  E.  1077,  29 

(b)  Per  Fortescue,  J.,  in  Pierce  L.  J.  242. 

V.  Hopper,  1  Stra.  260.  ^'  Stieat  v.  Rothschild,  12  Daly, 

2tt  [llersom's  Case,    39  Me.  476.  (N.  Y.)  95  ;  and  see  Druse  v.  Hort- 

But  see]  Cullen  V.  Trimble,  L.  R.  er,  57  Wis.  644.     As  to  construc- 

7  Q.  B.  416  ;  Joiinson  v.  Colam,  tion  of  arbitration  Acts  generally, 
L.  R.  10  Q.  B.  544,  where  an  Act  see  ante,  ij  108. 

which,  without  expressly  empow-  ^^  Camp  v.  Ingersoll,  86  N.  Y. 
eringanytribunaltotry  the  offence,  433.  This  same  construction,  how- 
imposed  penalties  on  any  person  ever,  would  make  a  statute  author- 
who  exposed  diseased  animals  for  izing  a  reference  in  cases  "  involv- 
eale,  unless  he  showed  "  to  the  jus-  ing  matters  of  account,"  directly 
tices  before  whom  he  is  charged,"  applicable  to  a  suit  upon  a  tax-col- 
that  he  was  ignorant  of  the  condi-  lector's  bond,  to  recover  a  balance 
tion  of  the  animals,  and  gave  him  due  by  him,  as  shown  by  his  ac- 
an  api)eal  if  he  felt  aggrieved  "  by  counts  ;  Marlar  v.  State,  62  Miss, 
the  adjudication  of  justices,"  was  677. 


§   15G]  JURISDICTIONS,  211> 

act  apjainst  its  clear  inclining  so  as  to  give  a  court  jiirisdic. 
tion." 

[The  presumption  against  tlie  creation  of  a  new  jurisdiction 
is  all  the  stronger  where  the  jurisdiction  is  already  vested  in 
a  superior  body.  Thus,  where  an  act  provided  for  the  trial 
and  determination  of  contested  elections  of  members  of  the 
Legislature  by  the  Court  of  Common  Pleas  of  the  proper 
count}',  and  directed  the  court,  after  hearing  to  decide  which 
of  the  candidates  had  received  the  greatest  number  of  legal 
votes  and  was  entitled  to  a  certificate  of  election,  it  was  held 
that  this  was  all  the  court  could  do,  and  that  it  had  no  power 
to  enter  any  judgment  or  make  aiiy  decree  declaring  which 
claimant  was  entitled  to  the  offices,  the  final  determination 
of  that  matter  belonging  to  the  Legislature  itself,  which  was 
at  liberty  to  disregard  every  conclusion  of  fact  or  law  found 
by  the  Court.'"] 

§  156.  Effect  to  be  Given  to  Necessary  Implication. — How- 
ever, effect  must  of  course  be  given  to  the  intention,  where 
the  Act,  witiiout  conferring  jui-isdiction  in  express  terms, 
does  so  by  plain  and  necessary  implication.  A  recent  enact- 
ment has  been  considered  as  granting  jurisdiction  by  impli- 
cation, in  a  remarkable  manner.  The  31  &  32  Yict.  c.  71, 
after  reciting  that  it  was  desirable  that  some  County  Courts 
should  have  Admiralty  jurisdiction,  and  authorizing  the 
Queen  in  council  to  confer  such  jurisdiction  on  any  of  those 
Courts,  empowered  them  to  try  certain  classes  of  cases  over 
which  the  Court  of  Admiralty  had  jurisdiction  ;  directing  the 
judge  to  transfer  any  case  to  the  Admiralty,  where  the 
amount  claimed  exceeded  300^.,  and  giving  also  to  the  latter 
Court,  in  all  cases,  not  only  an  appeal,  but  power  to  transfer  to 
itself  any  suit  instituted  in  the  lower  Court.  By  a  supple- 
mentary Act  passed  in  the  following  session  (32  &  33  Vict.  c. 
51),  the  County  Courts  on  which  Admiralty  jurisdiction  had 
been  thus  conferred,  were  further  authorized  to  try  any  claim 
arising  out  of  any  agreement  nuide  in  relation  to  the  use  or 
hire  of  any  ship,  or  in  relation  to  the  carriage  of  an}'  goods 

"  Pitman    v.    Flint,    10    Pick.      16  Tex.  App.  76. 
(Mass.)  506.     See  ante,    §  6  ;    but         ^o  /;,,  j^g  Coiit.  Election   of  Mc- 
also  post,  §265,  Chapman  v.  State,      Neill,  111  Pa.  St.  235 


-220  JURISDICTIONS.  [§  157 

-in  anj  ship,  where  the  cUihn  does  not  exceed  300^.  The 
Court  of  Admiralty  ]iad  no  jurisdiction  over  these  cases 
before  the  Act  was  passed,  but  it  followed  that  in  thus  giving 
the  County  Conrt  this  jurisdiction,  the  Statute  also  gave,  by 
mere  implication,  to  the  Admiralty  Court,  not  only  appeHate, 
but  original  jurisdiction  also;  besides  introducing  the  anom- 
aly of  dealing  with  small  cases  on  different  principles  of  law 
from  large  ones ;  while  the  apparent  object  of  the  enact- 
ments was  merely  to  distribute  the  existing  Admiralty 
jurisdiction  {a). 

§  157.  New  Jurisdiction  and  Remedies  not  Extended  by  Con- 
Btruction. — [But,  it  follows  from  the  application  of  the  pre- 
sumption against  the  creation  of  new  jurisdictions  and 
remedies,  that  where  such  are  given,  they  are  not  to  be  ex- 
tended beyond  the  fair  import  of  the  legislative  grant." 
Neither,  on  the  other  hand,  are  they  to  be  unduly  confined. 
Thus,  an  act  giving  jurisdiction  of  disputes  between  non- 
j'csidents  and  citizens,  would  include  a  case  where  but  one 
of  the  defendants  is  a  citizen,  the  other  defendants  and  all 
of  the  complainants  being  non-residents.^*  And  under  a 
statute  creating  an  Orphans'  Court,  the  jurisdiction  of  the 
same  would  not  be  restricted  to  orphans  and  persons  under 
age.*'  And  again,  where  in  a  statute  conferring  juris- 
diction upon  certain  courts,  the  word  "  not  "  was  inserted 
clearly  by  mistake,  in  such  a  way  as  to  nullify  the  intention 
of  the  Legislature,  the  act  was  read  as  though  that  word  had 
been  omitted."  Indeed,  it  is  said,  that,  unless  some 
established  rule  of  law  is  palpably  violated,  doubts  as  to 
jurisdiction  may  be  solved  in  favor  of  the  tribunal  exercising 
it." 

(«)  See  The  Alina,  5  Ex.  D.  227  ;  5e3  ;  and  see  Thomas  v.  Adams,  2 

Everard  v.  Kendall.  L.  R.  5  C.  P.  Port.  (Ala.)  188. 

428  ;  Simpson  v.  Blues,  L.  R.  7  C.  22  Turner  v.   O'Bannon,  2  J.  J. 

P.  2<J0  ;  Gunnestad  v.  Price,  L.  R.  Marsh.  (Ky.)186.  See  The  Removal 

30  Ex.  65  ;   Guudet  v.  Brown,  L.  Cases,  100  U.  S.  457. 

R.  5  P.  0.  134,  and  the  cases  there  33  Wood  v.  Tallman,  1  N.  J.  L. 

-cited.     See  also  Smith  v.   Brown,  153. 

L.  R.  G  Q.   B.   729  ;   The  Dowse,  s*  Chapman  v.    State,    16  Tex. 

L.  R.  3  A.    &   E.    135  ;    Allen   v.  A  pp..  76  ;  but  see  ante,  §  155. 

Garbutt,  6  Q.  B.  D.  165,  50  L.  J.  "^  ^i-^xih  v.  People.  47  K.  Y.  330, 

•141,  See  Stuart  v.  Laird,  1  Cranch,  299  ; 

«>  Pringle  v.  Carter,  1  Hill  (S.  C.)  post,  §  527. 


S  158]  jcKisDicrioNS.  221 

§  158.  Summary  Jurisdictions. — [TliC  presumption  aguiust 
an  intention  t(^  create  ii  new  jurisdietion  applies]  especially 
when  it  would  have  the  effect  of  depriving  the  subject  of 
liis  freehold,  or  of  any  common  law  right,  such  as  the  right 
of  trial  by  jury,  or  of  creating  an  arbitrary  procedure.^'  It 
has  been  said  that  words  conferring  such  a  jurisdiction  must 
be  clear  and  unambiguous  (a).  [Not  only  where  the  statute 
is  so  defectively  drawn,  that,  in  one  part  it  appears  as  though 
it  should  be  executed  summarily,  and  in  another,  in  the 
usual  way,  must  the  latter  construction  be  preferred  ;"  but, 
where  the  jurisdiction  given  by  the  statute  is  clearly  a 
summary  one,  it  is  the  universal  rule  in  this  countrj^,  as  well 
as  in  England,'*  that  the  provisions  of  the  statute  are  to  be 
strictly  construed.  This  principle  is  established,  or  rather 
acted  upon,  in  innuinerable  cases,  declaring  that  no  pre- 
sumptions are  to  be  made  in  favor  of  such  jurisdiction  ; 
that  the  record  of  the  proceedings  under  it  must  show  all 
the  facts  necessary  to  give  it,  and  strict  compliance  with  all 
the  details  prescribed  by  the  statute'^  conferring  it;  and  that 
the  jurisdiction  is  to  be  limited  to  the  precise  cases  contem- 
plated by  the  statute.  The  stringency  of  these  rules,  how- 
ever, is  aided  by  other  presumptions,  which  will  hereafter 
appear,  and  to  the  discussion  of  which  any  further  examin- 
ation of  it  seems  properly  referable."'' 

§  159.  United  States  Courts. —  [The  presumption  against 
the  extension,  or  creation  of  new  jurisdictions  is  one  of  con- 
siderable practical  importance  as  affecting  the  powers  of 
federal  courts.  The  federal  courts  have,  strictly  speaking, 
no  common  law  jurisdiction  ;"'  and  as  their  jurisdiction  is 
special  and  not  general,  there  can  be  no  presumption  of 
jurisdiction  in  their  favor  and  the  record  must  disclose  all 
the  facts  necessary  to  give  them  cognizance  of  the  case 
tinder  the  various  acts  of  Congress."     In  the  construction  of 


88  See  ante,  cases  in  note  a,  p.  217.  *»  SeeBish.,  Wr.  L.  §  193. 

(a)  Per  Keating,  J.,  in  James  v.  ■»"  See  post,  §§  263,  344,  351. 

S.  E.  R.  Co.,  L.  11.  7  Ex.  296.  «  Field,    Fed.   Cts.  p.  125,  and 

s'  Bennett  v.  Ward,  3  Cai.  (N.T.)  cases  cited  in  note  2. 

259.  "   Field,    Fed.    Cts.    pp.   136-7. 

38  See  Davison  v.  Gill,  1  East,  64,  and  oases  in   note  1  ;   p.  268,  and 

per  Kenyon,  C.  J.  cases  in  notes  4-8. 


222  JUKISDICTI0N3.  [§  106 

these  acts,  however,  a  reasonable  liberality  is  not  to  be  de- 
nied to  their  laufjuajie.  Hence,  under  an  act,  confei'rina 
njion  circuit  courts  jurisdiction  in  "all  suits  of  a  civil  luiture 
at  coniiiiou  law  or  in  equity  "  the  latter  term  "  does  not  limit 
the  jurisdiction  merely  to  suits  which  the  old  common  law 
recognizes  as  among  its  fixed  and  settled  proceedings,  but  it 
endjraces  all  suits  in  whicli  legal  rights  are  to  be  ascertained 
iind  determined,  as  well  as  rights  in  equity  ;*^  and  the  phrase 
"  suits  of  a  civil  nature "  is  held  to  include  an  action  of 
forcible  entry  and  detainer,"  an  action  to  recover  monej' lost 
at  gaming  or  horse-racing,^*  a  suit  against  a  sheriff  for  an 
escape  or  other  neglect  or  misdemeanor,"  and  the  like." 
So  under  an  act  which  gave  jurisdiction  in  controversies 
between  citizens  of  different  states,  it  was  held  that  the 
term  citizen,  in  that  act,  embraced  not  oidy  those  techni- 
cally citizens,  i.  <?.,  possessing  the  requisite  qualifications  for 
voting  and  holding  real  estate,  but  anyone  who  resides  in, 
and  is  an  inhabitant  of  a  sttite/^  And  corporations  are 
regarded  as  citizens  within  the  meaning  of  the  law,^"  to  the 
extent  of  including  municipal  (corporations. ^^ 

§  160.  Special  Jurisdictions.— [LTpoil  the  principle  Ulldcr  dis- 
cussion,  any  special  jurisdiction,  conferred  upon  a  court  for 
a  particular  emergency,  is  not  to  be  extended  beyond  its 
purpose,  and  the  facts  giving  tlie  jurisdiction  must 
appear.  Thus,  where  an  act  gave  authority  to  a  corpora- 
tion to  take  land  for  the  construction  of  a  canal,  and  pro- 
vided, that,  if  the  company  could  not  agree  with  the  owners 
as  to  compensation,   the  parties  might  appoint   viewers  to 

^3  Field,  Fed.  Cts.p.    110,   cit :  DeWolf   v.    lliilnuid,  1   Pet.   47(!  ; 

Kohl  V.  U.  8..  91  U.  S.  367  ;  U.  S.  Sheltoa   v.   Tilliu,    6    How.     163. 

V.  Block,  3  Biss.  208.  Compare,  however,  Dred  Scott  v. 

"  Wlieeler  v.  Bates,  6  Biss.  88.  Sanford,  19  How.  393. 

■•s  Grant  v.  Hamilton,  3  McLean,  ^^  Field,  Fed.  Cls.  p.  121,  citing 

100.  O.  &  M.  R.  II.  Co.   V.   Wiieolcr,  1 

*'^  Mewster  v.  Spaulding,    G  Mc-  Black,  296 ;  Louisville  R.  R.  Co.  v. 

Lean,  24.  Letsou,  1  How.  497;  Marshal  v.   II. 

^'  See  Field,  Fed.  Cts.  p.  110,  R.  Co.,  16  Id.  314;  Coviuo-lon,  etc., 
from  whence  the  above  instances  Co.  v.  Shepherd,  21  Id.  212  ;  Rail- 
are  borrowed.  road  v.  Harris,  12  Wall.  65  ;  R.  R. 

••^   See  Field,  Fed.    Cts.   p.    115,  Co.  v.  Whitton,  13  Id.  270. 

citing  Prentiss  v.  Barton,  1  Brock.  ^^  Field,   Fed.  Cts.    p.   135,  and 

389  ;  Cooper  v.  Galbraith,  3  Wash,  cases  cited  there. 
540 ;  Gardner  v.  Sharp,  4  Id.  609  ; 


§  161]  GOVERNMENT,  223 

assess  the  datna,s;es  ;  or,  if  any  of  tlic  owners  should  refuse  to 
join  in  sueli  appointment,  or  be  femes  covert,  infants,  or 
non  compotes  mentis,  the  court  of  common  j)leas  might 
appoint  the  viewers:  it  was  held  that  the  jurisdiction  of  the 
common  pleas  could  attacli  only,  if  the  owners,  not  heinf 
within  the  disabilities  mentioned,  refused  to  join  in  the 
appointment  of  viewers,  and  that  the  record  of  the  pro- 
ceedings must  show  that  the  requisites  of  the  act  had  been 
<Jomplied  with." 

[Analogous  to  the  rule  as  to  such  special  jurisdictions 
seems  the  doctrine  that  "a  statute  will  not  be  construed, 
unless  express  words  require,  to  confer  jurisdiction  on  courts 
established  under  another  j^ower ;  as,  if  it  is  a  statute  of  the 
United  States,  to  give  authority  to  State  tribunals."^"] 

§161.  Presumption  against  Intent  to  AflFect  Government.  Eminent 
Domain.— On  probabl}'  similar  ground  rests  the  rule  commonlv 
stated  in  the  form  that  the  Crown  is  not  bound  by  a  statute 
unless  named  in  it.^^  It  has  been  said  that  the  law  is  prima 
facie  presumed  to  be  made  for  subjects  only  (a),  [that  "  the 
general  business  of  the  legislative  power  is  to  establish  laws 
for  individuals,  not  for  the  sovereign.""]  At  all  events,  the 
Crown  is  not  reached  except  by  express  words,  or  by  neces- 
sary implication,  in  any  case  where  it  would  bo  ousted  of 
an  existing  prerogative  or  interest  (h).  It  is  ])resumed  that 
the  Legislature  does  not  intend  to  deprive  the  Ciown  of  any 
prerogative,  right  or  property,  unless  it  expresses  its  inten- 
tion to  do  so  in  explicit  terms,  or  makes  the  inference  irre- 
sistible.     Where,  therefore,  the  language  of  the  statute  is 

51  Jones  V.    Tiitliiim,  20  Pa.  St.  398,  411. 
398.      See  also  Iltiley  v.  Petty,  43  (b)  Inst.  191,  Atty.-Genl.   v.  All- 
Ark.  392,  and  post,  §  351.  good,  P.iiker,  3  ;   Buc  Ab.  Prero- 

"Bish.,  Wr.  L.,  i^l42,  cit.  Hoir-  gativc.   E.  5  (c) ;   Co.    Lilt.  43b.; 

Ion  V.  Moore,  5  Wheat.   1,  42,  6li  ;  Chit.  Prerogative,  382;  Ay.scough's 

III  re  Bruni,  1  Barb.   (N.  Y.)  187,  Case.  Cro.   Car.   52G  ;  Hiisrgins  v. 

208.  Banibridge.    Willes,     241  T    K.   v. 

5s  Compare    Sedgw.,    at  p.    28  :  Wright,  1  A.  &  E.  437.     [U.  S.  v. 

"The  English  precedents  are  based  Ilewes,    Crabbe,    307;    U.    S.    v. 

on  tlie  olil   feudal  ideas  of  royal  Greene,    4   Mason,   427  ;    U.  S.  v. 

dignity  and  prerogative ";  and  sec  lloar,    2    Id.    311;   Stoughton  v. 

post,  4;  100,  note.  Baker,    4     Mass.    522  ;    Jones    v. 

(a)   NYilliou  v.  Berkley,  Plowd.  Tathani,  20  Pa.    St.  398  ;   State  v. 

230  ;   per  Cur.    in    Attj-'-Genl.    v.  ]\Iilburu,  9  Gill  (Md.)  105  ;  Ale.\au- 

Donaldson,  10  M  &  \V.  117.  der  v.  State,  50  Ga.  478;   Cole  v. 

''*  Jones  V.  Tatham,   20  Pa.   St.  White,  32  Ark.  45.] 


224:  GOVERNMENT.  [§  102' 

general,  and  in  its  wide  and  nutnral  sense  wouM  divest  or 
take  away  any  jjrerogative  or  right,  [titles  or  interests]  from 
the  Crown,  it  is  construed  so  as  to  exclude  that  effect  {a). 
Thus,  the  coni])ulsory  clauses  of  Acts  of  Parliament,  which 
authorize  the  taking  of  lands  for  railway  or  other  jjurposes, 
such  as  are  contained  in  the  Lands  Clauses  Act  of  1845, 
M'ould  not  ajDply  to  Crown  property,  unless  made  so  appli- 
cable in  express  terms  or  by  necessary  inference  {h).  [So, 
where  an  act  of  Assembly  authorized  a  corporation  to  cut  a 
canal  or  passage  for  steamboats  and  vessels  thi'ough  an 
island,  taking  therefor  not  more  than  600  feet  in  width,  the- 
passage,  when  made,  to  be  a  public  highway  ;  and  author- 
ized the  company  to  enter  upon  and  occupy  for  the  purpose 
of  niaking  said  canal,  any  land  upon  which  the  same  might 
be  located, — it  was  held,  that,  if  the  island,  at  the  time  of 
the  passage  of  the  act,  was  the  property  of  the  Common- 
wealth and  not  of  private  individuals,  the  company,  under 
that  act,  derived  no  title  to  any  part  of  it,  because  words  of 
a  statute,  applying  to  private  rights,  do  not  affect  those  of 
the  state,  in  the  absence  of  a  plain  expression,  or  necessary 
in)plication  to  the  contrary." 

§  162.  [Upon  the  same  basis  rests  the  doctrine  that  the 
grant  to  a  corporation  by  the  legislature  of  a  general  power  to 
take  real  estate  for  the  purposes  of  the  incorporation  does  not 
extend  to  property  already  dedicated  to  and  held  for  another 
public  use  by  authority  of  law, — as,  e.  </.,  public  highways,^* 
or  property  held  by  a  city  for  reservoir  purposes."  Though 
such  a  power  may  be  given  by  express  grant,"  and  though 


(a)  Bac.     Ab.      Prerog.     E.    5  ;  (b)  8  Vict.  c.  18  ;  Bo  Cuckfield 

Crooke's  Case,  Show.  208.      [State  Board,  Id  Beav.  153,  21  L.  J.  Cli. 

V.  Kinne,  41  N.  H.  238  ;   State  v.  585. 

Garland,  7  Ired.  L.  (N.  C.)  48.   See  "  Jones  v,  Tatliam,  20  Pa.  St. 

also  :  Martin  v.  State,  24  Tex.  61  ;  398. 

Green  v.  U.  S.,  9  Wall.  655.]      So  "  Com'thv.  R.  R.  Co.,  27  Pa.  St. 

the  Biinkruptcj'  Acts  have  always  339,  354  ;  Pa.  R.  R.  Co's.^App.,  9^ 

been  lidd  not  to  bind  the  Crown  :  Id.  150. 

Exp.  Russell,  19  Ves.   165  ;   Exp.  "  State  v.  R.  R.  Co.,  35  N.  J.  L. 

Posmasler-Gen'l,    10   Ch.    D.    595.  328. 

[See,  to  same  effect,  in  the  United  ^«  D.    II.   &  W.  R.    R.    Co.    v. 

States:  Bish.,  Wr.  L.,  §  103,  citing  Coni'ih,    73  Pa.  St.  29  ;  Stormfeltz. 

U.  S.  V.  ilerron,  20  Wall.  251,  and  v.  Tuinp.  Co.,  13  Id.  555. 
other  cases.] 


§103] 


GOVEUNMENT. 


225 


II  onuit  of  it  may  even  be  iiifeiTed  by  necessary  implica- 
tion,'" cither  from  tlie  lan^niaj^c  of  tlie  statute  (where  it. 
gives,  e.  g.,  to  a  raih'oad  company,  an  absolute  right  to  con- 
struct its  road  by  the  most  practicable  route  its  engineers 
may  select,'"  or  by  a  direct  practicable  route,  as  to  it  may 
seem  most  advantageous,"  or  l^y  the  most  direct  and  least- 
expensive  route  between  its  termini,")  or  from  actual,  con- 
trolling necessity,  which  arises  from  the  circumstances  of 
the  case,  over  which  the  company  lias-  no  control,  and 
into  which  considerations  of  mere  economy  do  not  enter  :" 
yet  such  implication  cannot  arise  if  the  powers  expressly 
conferred  can,  by  reasonable  intendment,  be  exercised  with- 
out such  appropriation  of  public  property." 

§163.  statutes  Imposing  Taxation.— [Again,  it  is  a  general 
principle,  that  the  tax  laws  of  a  state  refer  to  private  and 
not  to  public  property,"  "  The  public  is  never  subject  to 
tax  laws,  and  no  portion  of  it  can  be,  without  express  stat- 
ute.    No  exemption  is  needed  for  any  public  property  held 


69  Com'th  V.  R.R.  Co.,  27  Pa.  St. 
339. 

60  D.  n.  &  W.  R.  R.  Co.  V. 
Com'lb,  73  P:v.  St.  29. 

61  Piltsburgh  v.  R.  R.  Co.,  48  Pa. 
St.  355. 

«^  Cleveland,  &c.,  R.  R.  Co.  v. 
Speer.  56  Id.  325. 

63  Pa.  R.  R.  Co's  App.,  93  Pa. 
St.  150  ;  Slormfeltz  v.  Tump.  Co., 
13  Id.  555. 

6^  Exp.  Boston,  &c.,  R.  R.  Co., 
53  N.  Y  574  ;  aud  see  Spriugfield 
V.  R.  R.  Co.,  4  Cush.  (.Muss.)  63  ; 
Little  Miami,  &c.,  R.  R.  Co.  v. 
Dayton,  23  Ohio  St.  510.  But  see, 
as  to  the  appropriation  of  th*^  tracks 
of  another  railroad  :  Northern  R. 
R.  Co.  V.  R.  R.  Co.,  27  N.  H.  183; 
New  York,  &o.,  R.  R.  Co.  v.  R. 
R.  Co.,  36  Conn.  196. 

65  [See  Cooley,  Taxation,  pp. 
130-131  ;  2  Dillon,  l\Iun.  Corp.,  g§ 
614-615].  So,  as  it  is  a  preroga- 
tive of  the  Crown  not  to  pay  tolls  or 
rates,  oi*  other  burdens  in  respect  of 
property,  it  was  long  since  estab- 
lished that  the  Poor  Act  of  Eliza- 
beth, which  authorizes  the  imposi- 


15 


tion  of  a  poor  rate  on  every  "in- 
habitant and  occupier  "  of  property 
in  the  parish,  did  not  appl}-  to  the 
Crown,  or  to  its  direct  and  imme- 
diate servant-,  whose  occupation  is 
for  the  ptu'poscs  of  the  Crown  ex- 
clusively, and  so  is,  in  fact,  the 
occupation  of  the  Crown  itself  : 
43  Eliz.  c.  2.  Per  Lord  Wcstbury 
and  Lord  Cranworlh  in  IMersey 
Docks  Co.  V.  Cameron.  11  H.  L. 
443,  35  L.  J.  M.  C.  22,  25  ;  Am- 
herst V.  Soraers,  2  T.  R.  372 ;  R. 
V.  Harrowgate,  15  Q.  B.  1012  ;  R. 
V.  St.  Martin's,  L.  R.  2  Q.  B.  493. 
Thus,  property  occupied  by  the 
servants  of  the  State  for  public 
purposes,  as  the  Post  OIHce  : 
Smith  v.  Birmingham,  7  E.  &  B. 
483  ;  the  Horse  Guards  :  Amherst 
V.  Somers,  2  T.  R.  372  ;  R.  v.  Jav, 
8  E.  &  B.  419  ;  the  Admiralty  : 
R.  V.  Stewart,  8  E.  &  B.  360  ;  and 
even  bv  local  police  :  Lancashire 
V.  Sheiford,  E.  B.  &  E.  230  ;  by 
the  judges,  as  lodgings  at  the  as- 
sizes :  llodgson  v.  Carlisle,  8  E. 
&  B.  230  ;  by  a  county  court :  R. 
V.  ]\Ianchesler,  3  E.  &  B.  336  ;  or 
for  a  jail  :  R.  v.  Shepherd,  1  Q.  B. 


220 


GOVERNMENT. 


[§    l«i 


as  such.'"'"']  But  if  the  tax  attached  to  the  hiiid,  and  not  to 
irs  owner  or  oceupiei",  this  rule  would  not  l)c  applicable  ;  and 
land  eliar^-ed  with  it  in  the  hands  of  a  subject,  would  not 
become  exempted  on  vestinc;  in  the  Sovereign  {a). 

§  1G4.  Statutes  of  Limitations.— On  the  same  general  princi- 
ple, the  numerous  Acts  of  Parliament  which  have,  at  various 
tunes,  taken  away  the  writ  of  certiorari,  have  always  been 
held  not  to  apply  to  the  Crown  (b).  So,  the  13  Geo.  2,  c. 
18,  s.  5,  which  limits  the  time  for  issuing  that  writ  to  six 
months  from  the  date  of  the  conviction  (r),  and  the  12  &  13 
Yict.  c.  45,  s.  5,  which  authorizes  the  Quarter  Sessions  to 
give  costs  to  the  successful  party  in  any  appeal  {d),  do  not 
apply  to  the  Crown  (the  prosecutor),  but  onl)'  to  the  defend- 
ant. On  the  same  ground,  it  "would  seem,  the  4  Anne,  c. 
16,  s.  4,  which  authorized  a  "defendant"  or  tenant,"  with 

Directors,  42  Pa.  St.  21.  But  un- 
der an  act  providing  tbat  "  all 
property,"  other  tlian  that  wliicli 
is  ill  actual  use  for  certain  puri)o.ses 
therein  before  speeilied,  "  and  from 
wliich  any  ineonie  or  revenue  is 
derived,"  shall  be  subject  to  taxa- 
tion, ix  municipality  owning  water- 
works from  which  a  revenue  was 
derived  by  means  of  water  rates 
paid  by  consumers,  was  held  sub- 
ject to  taxation  for  county  pur- 
poses, irrespectively  of  the  ques- 
tion whether  the  reveiuie  thus  de- 
rived was  paid  into  the  treasury  of 
the  municipality  or  used  in  main- 
taining and  improving  the  prop- 
erly :  Erie  Co.  v.  Commissionei's, 
113  Pa.  St.  368. 

(«)  Colchester  v.  Kewney,  L.  R. 
1  Ex.  368. 

{b)  See,  ex.  gr.  R.  v.  Cumber- 
land, 3  B.  &  P'.  Z~A  ;  K.  v.  xVllcn, 
If)  East,  333  ;  R.  v.  Boultbee,  4  A. 
&  E.  498. 

(c)  R.  V.  Farewell,  2  Stra.  1209; 
R.  v.  .Tames,  1  East,  303a  ;  R.  v. 
Berkeley,  1  Ken.  80. 

{d)  R.  V.  Beadle,  26  L.  J.  M.  C. 
Ill,  7  E.  &B.  492. 

'^■'  Ordinarily  the  terms  plaintiil 
and  defendant,  in  a  statute,  apply 
to  individuals  only,  not  to  states, 
counties  or  mimicipal  corporations; 
Schuyler  Co.  v.  Mercer  Co.,  9  111. 
20. 


170  ;  Beds  V.  St.  Paul,  7  Ex.  650. 
See  the  judgments  of  Blackburn. 
J.  and  Lord  Cranwortli  in  Mersey 
Docks  Co.  V.  Cameron,  11  II.  L. 
443,  3.>  L  .7.  M.  C.  10;  Leilh 
Coram.  V.  Poor  Insp'rs,  L.  R.  1 
Sc.  App  17  ;  or  reformatory  sc-hool; 
Shepherd  v.  Bradford,  16  C.  B. 
N.  S.  369,  33  L.  J.  M.  C.  182. 
See  Bro.  Ab.  Prerog.  du  Roy,  112; 
King  V.  Cook,  3  T.  R.  519  ;  West- 
over  V.  Perkins,  2  E.  &  E.  57,  28 
L.  ,J.  M.  C.  227  ;  or  by  the  com- 
missioners of  public  works  and 
buildings  in  respect  of  a  toll-bridge 
of  which  they  were  in  occupation 
as  servants  of  the  Crown  :  R.  v. 
McCann,  L.  R.  3  Q.  B.  677  ;  was 
held  exempt  from  poor-rate. 
(Comp.  Bute  v.  Grindull,  1  T.  R. 
338  ;  R.  v.  Ponsonbv,  3  Q.  B.  14  ; 
R.  v.  Shee,  4  Q.  B.  2  ;  R.  v. 
Stewart,  8  E.  &  B.  360.)  And 
property  in  tlie  occupation  of  the 
Sovereign  would,  also,  not  be  lia- 
ble to  the  common  law  burden  of 
church  rates  or  sewer's  rate  ;  one 
reason  assigned  being  that  they 
could  not  be  cuforeed  :  Per  Dr. 
Lushinuiton  in  Smith  v.  Keats,  4 
Ilagg.  279  ;  Atty.-Genl.  v.  Donald- 
.son,  10  M.  &  W.  117.  So,  the 
Royal  Dockyards  at  Deptford 
were  held  not  assessable  to  the 
land  tax  :  Atty.-Genl  v.  Hill,  2 
M.  &  W.  160. 
^^  Directors  of  the  Poor  v.  School 


?  104] 


GOVKKNMENT. 


227 


the  leave  of  the  Court,  to  plead  several  matters,  was  held 
not  to  extend  to  defendants  in  suits  by  or  on  behalf  of  the 
Crown  (a) ;  nor  was  the  right  of  the  Crown  as  to  proceedings 
in  tlie  Excliequer  touciiing  the  revenue  or  proj>erty  of  the 
Crown,  affected  by  the  County  (^oui't,  or  Judicature,  or 
Companies  (18G2)  Acts  {h).  The  Statutes  of  Limitation  (c) 
have  always  been  held  not  to  bind  the  Crown  [in  England, 
nor  the  Government  of  the  United  States  in  this  country,"' 
unless  so  expressed/"  "With  reference  to  state  governments, 
the  rule   is    practically  the  same.'"'     And   it   is   immaterial 


(rt)  Atty.-Genl.  v.  Allgood,  Par- 
ker, 1  ;  Alty.-Genl.  v.  Doualdson, 
7  M.  &  W.  433,  10  M.  &  VV.  117  ; 
11.  V.  Abp.  of  York,  Willes,  533  ; 
Hall  V.  Maulc,  4  A.  &  E.  283. 

(b)  Mountjoy  v.  Wood,  1  H.  & 
N.  58  ;  Atty.-Genl.  v.  Constable,  4 
Ex.  D.  173  ;  Atty.-Genl.  v.  Barker, 
L.  R.  7  Ex.  177  ;  Ee  Henley,  9 
Ch.  D.  469. 

{c)  11  Rep.  68b,  and  74b  ;  Lam- 
bert V.  Taylor,  4  B.  &  0.  138,  6tli 
point ;  Rustomgce  v.  R.,  1  Q.  B.  D. 
487,  2  Q.  B.  D.  69. 

«>*  U.  S.  V.  Thomp-son,  98  U.  S. 
486  ;  U.  S.  V.  Ry.  Co.,  118  Id.  120; 
U.  S.  V.  Williams,  5  McLean  133; 
U.  S.  V.  Davis,  3  Id.  483  ;  U.  S.  v. 
Hoar,  3  :Mass.  311  (neither  the 
a^eneral  statute,  nor  the  statute  of 
limitations  of  Massachusetts  as  to 
executors  and  administrators) ;  U. 
S.  V.  White,  3  Hill  (N.  Y.)  59  (on 
u  note,  though  held  by  the  U.  S. 
by  transfer;  aliter,  where  the 
statute  ben'an  to  run  before  trans- 
fer to  tbe^U.  S.  :  Ibid.)  ;  Robb  v. 
AVashingtou  Co.,  63  Miss.  589  ; 
Bates  V.  Aveu,  60  Id.  955  ;  Swear- 
inger  v.  U.  S.,  11  Gill  and  J.  (Md.) 
373  ;  McNamee  v.  U.  S.,  11  Ark. 
148. 

'^'^  Gibson  v.Chateau,  13  Wall.  92  ; 
Swann  v.  Lindsev,  70  Ala.  507. 

"  Lindsey  v.  Miller,  6  Pet.  666  ; 
People  V.  Gilbert,  18  Johns-  (N.Y.) 
337  ;  Stoughton  v.  Baker,  5  ]\Iass. 
523  ;  Wright  v.  Swan,  6  Port. 
(Ala.)  84  ;  Kennedy  v.  Townlev, 
16  Ala.  339  ;  Ware  v.  Greene,  37 
Id.  494  ;  llledsoc  v.  Doe,  5  Miss. 
13  :  Parmilce  v.  :McXutt,  9  Id.  179; 
Stale  V.  Joiner,  23  Id.  500  ;  Josse- 
lyu  V.  Stone.  28  Id.  753  ;  Bailey  v. 
Wallace,  16  Serg.  and  R.  (f»a.)  345; 


Munshower  v.  Patton,  10  Id.  334  ; 
Com'th  V.  Baldwin,  1  Watts  (Pa.) 
54  ;  Com'th  v.  Johnson,  6  Pa.  St. 
136  ;  Glover  v.  WiLson,  Id.  290  ; 
McKeehan  v.  Com'th,  3  Id.  151  ; 
Com'th  V.  Hutchinson,  10  Id.  406  ; 
Troutman  v.  J\Ia_y,  33  Id.  455  ; 
Zacherie's  Succession,  30  La.  An. 
P.  II.  1260  ;  Carey  v.  Whitney,  48 
Me-  516  ;  State  Treas'r  v.  Weeks, 
4  Vt.  215 ;  Parks  v.  State,  7  ilo. 
194 ;  State  v.  Pratle,  8  Id.  286  ; 
State  V.  Fleming,  19  Id.  607  ;  Re 
Life  Assoc'n,  12  Mo.  App.  40  ; 
Jefferson  v.  AVhipple,  71  ]\Io.  519  ; 
Wallace  v.  Miner,  6  Ohio  366  ; 
State  V.  St.  Joseph  Co.,  90  Ind. 
359  ;  Jackson  Co.  v.  Slate,  106  Ind. 
270  ;  Putnam  v.  State,  Id.  531  ; 
Hardin  v.  Taylor,  4  T.  B.  Mon. 
(Ky.)  516  ;  State  v.  Arledge,  3 
Bailey  (S.  C)  401;  Ilarlock  v. 
Jackson,  3  Brev.  (S.  C.)  254  ;  State 
V.  Pinckney,  22  S.  C.  484  ;  Brins- 
field  V.  Carter,  3  Ga'.  143  ;  Walls 
V.  i^IcGee,  4  Harr.  (Del.)  108  ;  State 
V.  School  Dislr..  34  Kan.  237  ; 
Weatherhead  v.  Bledsoe,  2  Overt. 
(Tenn.)  353  ;  Wilson  v.  Hudson,  8 
Yen;.  (Tenn.)  398  ;  Nimmo  v. 
Com'th,  4  Hen.  &  II.  (Va.)  57  ; 
Levas.ser  v.  Washburn,  11  Gratt. 
(Va.)  572.  But.  of  course,  the  State 
may  plead  the  statute  of  limitations 
in  actions  against  it  :  Baxter  v. 
Stale,  10  Wis.  454 ;  Auditor  v. 
Ilalbert,  78  Ky.  577.  But,  as  be- 
tween States,  in  controversies  re- 
lating to  boundaries,  the  statutes  of 
limitation  cannot  be  applied  in  all 
their  rigor,  nor  will  a  title  by  pre- 
scription be  acquired  as  readliy  : 
Rhode  Island  v.  JMassaehusetts,  15 
Pet.  233.  It  is  said  that  no  pre- 
scription runs  against  the   State: 


228  GOVERNMENT.  [§  1G5 

wlietlier  the  suit  be  brought  in  the  name  of  the  state,  or  of 
another  party  to  its  use."  Indeed,  the  principle  has  been 
extended  so  as  to  bar  the  application  of  the  statutes  to  persons 
claiming  under  the  government ;  e.  g.,  a  tenant  in  possession 
of  land,  or  the  holder  of  a  certificate  of  survey,  or  purchaser,. 
wliile  the  title  remains  in  the  state."  But,  on  the  other  hand, 
it  has  been  held  that  the  statutes  may  be  pleaded  against  a 
grantee  of  the  United  States  ;''  in  a  suit  against  the  Bank  of 
the  United  States,  though  the  government  was  a  stock- 
holder ;'*  in  a  suit  in  which  the  state  is  only  a  nominal,  and, 
e.  g.,  a  township  the  beneficial  and  real  party,"  or  in  a  suit 
upon  a  bail  bond,"  or  in  an  action  for  a  mandamus  in  the 
name  of  the  state,  to  enforce  a  private  right  ;"  and  to  a 
private  individual  who  holds  a  title  to  land  from  an  Indian 
reservee,  which,  without  a  patent,  entitled  him  to  maintain 
ejectment.''* 

§  165.  Municipalities.— [It  has  been  held,  that  municipali- 
ties, being  but  parts  of  the  state  government,  subdivision  of 
its  sovereignty,  as  it  were,  exercising  delegated  political 
powers  for  public  purposes,"  in  so  far  partake  of  that 
sovereignty  as  to  share  in  the  exemption  from  the  effects  of 

Glaze  V.  R.  R.  Co.,  67  Ga.  701  ;  apply  to  suits  by  the  State  against 

and  see  Walls  v.  McGee,  4  Harr.  sureties  of  public   oflicers  ;     nor, 

(Del.)  108  ;   Carey  v.  Whitney,  48  Glover  v.  Wilson,  G  Pa.  8t.  290,  to 

Me.  516  ;   Alton  v.  Trans.  Co.,  12  a  suit  upon  a  tax-collector's  bond, 

111.  38.     But  see  post,   gg  1C6-8.  which    includes    botli    State    and 

■"  Glover  v.    Wilson,'  6  Pa.    St.  County  taxes;  nor.  State  v.  Pratte, 

290,  293.  8   Mo.    280,    upon    official   bonds. 

•:-'Smead  v.  Williams,  6  Ga.  158;  But  sec  Furlong  v.  State,  58  Miss. 

Duke  V.  Thompson,  16  Ohio  34.  717,  post,  t^  107. 

And  see  Truehart  v.  Babcock,  49  "  ]\Ioo(ly  v.  Fleming,  4  Ga.  115. 

Tex.  249.  "  Dillingham  v.  Brown,  38  Ala. 

"  Cliicago,  &c.,  Ky.  Co.   v.  All-  311.      In   a  case  where  the  occu- 

frce,  64  Iowa  500.  pant  of  land  has  been  permitted  to 

"  U.    S.    B'k    V.    ]\IcKenzie,    2  hold  possession  thereof  for  a  period 

Brock.  893.      But  see  State  B'k  v.  fixed  or  recognized  by  the  laws  as 

Brown,  2  111.  106,  that  a  debt  due  giving  title,   it  was  held  a  grant 

the   State  Bank,  was  a  debt   due  would   be  presumed    against    the 

the  State,  and  could  not  be  barred  government    by    analogy    to     the 

by  the  statute  of  limitations.  statute  of   limitations:      Jones  v. 

«  Miller  v.  State,   38   Ala.    600.  Borden.  5  Tex.  410. 

See  also  Glover  v.  Wilson,  6  Pa.  "  Baltimore  v.  Root,  8  Md.  95; 

St.  290,  293.  wherefore,  in  a  statute  authorizing 

'«  Straus  V.  Com'th,  1  Duv.  (Ky.)  attaclnuents   on   judgments   to   be 

149.     Compare,  however,  Ware  v.  laid  iu  the  hands  of  any   "person 

Greene,    37   Ala.    494  ;    Ala.    Sel.  or  persons"   whatever,  the  words 

Cas.  383,  that  the  statute  does  not  "  person   or  persons  "  were    held 


§  166]  GOVERNMENT.  229 

statutes  of  liinitAtions,*''  at  least  in  all  cases  wherein  they 
represent  the  public  at  large,  or  seek  to  enforce  a  right  per- 
taining to  sovereignty,  and  not  its  mere  private  rights,  such, 
e.  {/.,  as  the  collection  of  taxes." 

[But  the  v.-eight  of  authority  seems  to  be  the  other  way, 
and  to  concede  this  exemption  only  to  sovereignty  itself. 
Thus  statutes  of  limitations  have  been  held  to  run  against 
counties  f  against  a  town  or  city  corporation,"  iind  generally, 
in  the  absence  of  provisions  to  the  contrary,  against  municipal 
and  quasi-municipal  corporations,  as  against  natural  persons." 

[And,  of  course,  municipal  corporations  have  the  benefit 
of  the  statutes  of  limitations.*^] 

§  166.  When  Government  is  Included — The  Crown,  however, 
is  sutRciently  named  in  a  statute,  within  the  meaning  of  the 
maxim,  when  an  intention  to  include  it  is  manifest.  For 
instance,  the  20  &  21  Vict.  c.  43,  which  entitles  (by  section 
2)  either  party,  after  the  hearing,  by  a  justice,  of  "  any 
information  or  complaint "  which  he  has  power  to  deter- 
mine, to  apply  for  a  case  for  the  opinion  of  one  of  the 
Superior  Courts ;  and  after  authorizing  (by  section  4)  the 
justice  to  refuse  the  application,  if  he  deems  it  frivolous, 
provides  that  it  shall  never  be  refused  when  made  by,  or 
under  the  direction  of  the  Attorney-General,  and  directs  (by 
section  6)  the  Superior  Court,  not  only  to  deal  with  the 
decision  appealed  against,  but  to  make  such  order  as  to  costs 
as  it  deems  tit,  was  held  by   the  Queen's  Bench  to  include 

not  to  cmbnice  :i  muiiicii)al  corpor-  5'25  ;    Ouachita   Co.    v.    Tufto,   43 

ation  :  Ibid.      And  see  Bulkley  v.  Ark.  136  ;  Houston,  etc.,  Ry.  Co. 

Eckert,  3  Pa.  St.  368  ;   and  post,  §  v.  Travis  Co.,  62  Tex.  16. 

351.  *^  Ciacinnati    v.     First    Presb. 

80  Sec  Kellogg  v.    Decatur  Co.,  Church,  8  Ohio.  298;.  Lane  v.  Ken- 

38  Iowa,  524  ;  Coleman  v.  Thur-  ncdy,  13  Ohio  St.  42;  Cincinnati  v. 

niond,  56  Tex.  514  ;  City  of  Alton  Evans,    5    Id.    494;    Jefferson    v. 

V.  Trans.  Co.,  12  111.  38.  Whipple,  71  Mo.  519. 

"  See  Slmplot  v.   Ry.    Co.,    16  ^4  ggg  Wheeling  v.  Campbell.  13 

Fed.    Rep.    350  ;   Ihongli,   even  in  W.  Va.  36  ;   Forsyth  v    Wheeling, 

such  cases,  -uhon  justice  demands  19  Id.  318  ;   Fort  Smith  v.  McKib- 

and  to  prevent  a  wrong  to  private  bin,    41    Ark.  45,   where  adverse 

rights,    the    doctrine    of    estoppel  possession  of  an  alley  of  a  city  for 

in  pais  may  be  applied  :  Ibid.  the   statutory  period,  was  held  to 

•*'-  Glover  V.   Wilson,    6   Pa.    St.  give  tiile  to  the  occupant. 

290.  293  ;  Evans  v.  Erie  Co..  66  Id.  '**=  Gaines  v.  Hot  Spring  Co.,  39 

222  (though  a  grantee  from    the  Ark.  262  ;  Conyugham  Sch.  Distr. 

state,  from  the  date  of  the  crant  ;)  v.  Columbia  Co.,  6  Leg.  Gaz.  (Pa.) 

-St.  .Charles  Co.    v.  Powell,  22  Mo.  26. 


230 


GOVKKNMENT. 


[§  16^" 


tlie  Crown,  and  to  authoi-ize  :in  order  against  it  for  the  pay- 
ment of  costs.  The  language  of  the  second  section  was 
wide  enough  to  include  the  Crown  ;  and  as  the  fourth 
referred  to  the  Crown  as  jjlainlj  as  if  it  had  spoken  expressly 
of  Crown  cases,  the  language  of  the  sixth  authorizing  costs 
was  construed  as  ap])ljing  to  such  cases  also,  as  well  as  to 
eases  between  subject  and  subject  (a). 

It  is  said  that  the  rule  does  not  apply  when  the  Act  is 
made  for  the  public  good,  the  advancement  of  religion  and 
justice,  tlie  prevention  of  fraud,*"  or  the  suppression  of 
injury  and  wrong  {h) ;  but  it  is  probably  more  accurate  to 
say  that  the  Crown  is  not  excluded  from  the  operation 
of  a  statute  where  neither  its  prerogative,  rights,  nor  prop- 
erty are  in  question."  The  Statute  de  donis  (c)  ;  the  Stat- 
ute of  Merton,  against  usui'y  running  against  minors  (d) ; 
the  22  Hen.  3,  c.  22  (Marlbridge),  against  distraining  fj-ee- 
holdcrs  to  produce  their  title  deeds  (<?)  ;  the  32  lien.  8,  con- 
cerning discontinuances  (/")  ;  the  31  Eliz.,  against  simony 
{g) ;  the  13  Eliz.,  c.  10,  respecting  ecclesiastical  leases  (A), 
were  held  to  apply  to  the  Crown,  though  not  named  in 
them  (?').  So,  the  11  Geo.  4  &  1  Will.  4,  c.  70,  which  was 
passed  for  the  better  administration  of  justice,  and  enacted 
that  writs  of  error  u])on    judgments  given   in   any  of  the 


(n)  Moore  v.  Smith,  1  E.  &  E. 
597,  28  L.  J.  12(i.  See  Thcberge 
V.  Landry,  2  App.  102,  nnd  Cusli- 
in?  V.  Dupiiy,  o  App.  409.  But, 
although  tiie  Crown  be  uamed  in 
some  .sections,  this  docs  not  neces- 
sarily extend  to  it  the  operation  of 
other  parts  of  the  Statute  :  Exp. 
Postmaster-General,  10  Ch,  J). 
595. 

*^  In  such  cases,  it  is  said,  the 
state  is  included  by  the  term  per- 
sons :  Martin  v.  State,  24  Tex.  61  ; 
and  see  State  v.  Bancroft,  22  Kan. 
170,  that  "agent"  may  mean  an 
agent  or  officer  of  the  stale,  under 
an  act  acainst  embezzlement  ;  also 
Bish.,  Wr.  L.,  §212. 

{/)}  Case  of  Ecclesiastical  per- 
sons, 5  Rep.  14a,  Miigdaleu  Col- 
lege Case,  11  Rep.  70b-7;3a;  R.  v. 
Abp.  of  Armagh,  Stra.  510  ;  Bac 
Abr.  Prerogative,  E.  5.  [Com'lh 
V.  Garrigues,  28  Pa.  St.  9.] 


^'  See  U.  S.  V.  Knight,  14  Pet. 
301;  Fink  v.  O'Neil,  100  U.  S.  272; 
and  comp.  Sedgw.,  at  p.  28  : 
"Where  the  terms  of  an  act  are 
sweeping  and  univer.sal,  I  see  no 
good  icason  for  excluding  the 
Govcrnnunit,  if  not  esjjecially 
named,  merely  because  it  is  the 
Government;"  and  at  p.  107:  "  Nor 
do  I  understand  why  the  Govern- 
ment should  be  e.xeniplcd  from  the 
operation  ol'  general  rules  of  law, 
or  the  fair  interpretation  of  lan- 
iruage."     But  see  post,  ^5  1G7. 

(e)  13  Ed.  1  ;  Wiliion  v.  Berkley, 
Plowd.  223;  11  Rep.  72a. 

(d)  20  lien.  3 ;  Co.  Litt.  120a, 
note  3. 

{e)  2  Inst.  142. 

if)  2  Inst.  681. 

(7)  Co.  Litt.  120a,  note  3. 

(h)  5  Rep.  14a,  11  Rep.  66b, 
Stra.  516. 

(0  See  Bac.  Ab.  Prerog.  E.  5. 


§  167]  GOVi;UNMKNT.  2ul 

Superior  Courts,  slioukl  be  returned  to  the  Excliequer  Cham- 
ber, was  lield  to  apply  to  a  judgment  on  an  indictment  (a), 
and  on  a  ])etition  of  riglit  {h)  ;  altbougli  the  Crown  was  not 
named  or  referi-ed  to  in  the  Act.  Xo  prerogative  was  affect- 
ed by  this  construction  (r). 

§  167.  [Indeed,  wherever  the  mischiefs  to  be  remedied  by 
an  act  are  of  such  a  nature  as  necessarily  to  include  the  State, 
as  intended  to  be  within  the  meaning  of  and  affected  by  tlie 
act,  the  rule  under  discussion  becomes  obviously  inapj)lica- 
ble/®  Bearing  in  mind,  that,  In  the  nature  of  things,  there 
must  be  a  presumption  that  the  legislative  power,  in  creating 
its  laws,  has  primarily  in  view  the  establishment  of  rules  regu- 
lating the  conduct  and  affairs  of  individuals,""  not  those  of  the 
sovereignty,  and  that  the  general  language  of  an  act  is  to  be 
restricted  to  the  object  the  Legislature  had  in  view  when  using 
such  language,  it  is  manifestly  misleading,  if  not  technically 
inaccurate,  to  say,  as  has  been  held,  that  the  sovereign  power 
is  not,  in  this  country,  exempted,  by  virtue  of  its  prerogative, 
from  the  operation  of  any  general  laws,  except  those  ))rescrib- 
ing  limitations,^"  and  pi'obably  too  narri^wtosay  that  the  rule 
excluding  the  sovereignty  is  applicable  only  where  neither 
its  rights,  property  or  prerogative  are  in  question/'  It  has, 
indeed,  been  -held,  that,  under  an  act  requiring  '*  all  ""  suits 
upon  "any  bond,  obligation,  or  contract  under  seal  "  to  be 
brought  within  seven  years,  suits  by  the  State  upon  official 
bonds  were  baried  after  the  lapse  of  that  jjcriod."'^  On  the 
other  hand  the  term  "  ])erson  '"  in  a  statute  of  wills,  author- 
izing devises  to  any  person  capable  by  law  of  holding 
real  estate,  obviously  does  not  inchide  the  State  or  the 
United  States,  but  only  extends  to  such  natural  persons  and 
corporations  as  are  authoi'ized   by  the  laws   of   the  State  to 

(rt)   U.    V.    Wright,    1    A.    &  E.  »- Furlong  v.  State,  58  Miss.  717. 

434.  Aud  bv  vimie  of  express  statutory 

{b)  Do  Bode  v.  R.,  13  Q.  B.  464.  declaration,  it  wns  held  that  a  stat- 

(c)  Per  Cur.,  Id.  379.  ute  limiting  tlie  time  for  bringing 

**   See   Gibson    v.    Chateau,    13  actions    to     recover    damages    for 

Wall.  92.  injuries    to    property  ran   against 

^'  Ante,  §  Kil.  the  state  and   one  wlio  purchased 

""See  A'<3  .Tetlow,    14   Int.  Rev.  from  the  slate  as  against  any  other 

Rec.  205.  ])rivate  person  :    Coleman  v.  Pesh- 

»'  Supra,  §  1G6.  tigo  Co.,  47  Wis.  180. 


232  GOVKKNMKNT.  [§  1G7 

take  by  devise."  It  follows  that  not  only  the  divesting  or 
not  divesting  of  any  public  right  is  to  be  regarded,  but  also 
the  violation  of  jDrinciples  of  public  policy."  The  test, 
therefore,  in  every  case  in  which  the  question  whether  or 
not  the  government  is  included  in  the  language  of  a  statute 
has  to  be  met  and  determined,  cannot  be  a  mere  general 
rule,  either  one  way  or  another,  arbitrarily  applied,  but  must 
be  the  object  of  the  enactment,  the  purposes  it  is  to  serve, 
the  mischiefs  it  is  to  remedy,  and  the  consequences  that 
are  to  follow, — starting  with  the  fair  and  natural  presump- 
tion that,  primarily,  the  Legislature  intended  to  legislate 
upon  the  rights  and  affairs  of  individuals  only.  This  is  the 
only  proper  extent  and  application  of  the  rule  against  inclu- 
sion of  govcrmnent.  The  instances  cited  in  the  preceding 
section  militate  in  favor  of  this  view.  A  few  more  may 
strengthen  it.  As  in  England  the  Crown  was  held  bound 
by  the  statute  of  AVestm.  1,  c.  5,  as  to  free  elections,"*  so  it 
has  been  said  in  Massachusetts,  that,  where  general  rights 
are  declared,  or  remedies  given,  by  law,  the  Commonwealth, 
though  not  named,  is  included  ;°*  by  the  Supreine  Court 
of  the  United  States,  that  statutes  laying  down  general  rules 
of  procedure  in  civil  actions  bind  the  government;"  in 
Pennsylvania,  that  the  State  is  bound  by  statutes  made  to 
prevent  tortious  usurpations,  and  to  regulate  and  preserve 
the  right  of  all  elections,  and  prescribing  a  method  of  inves- 
tigating their  legality;"*  and  in  Arkansas,  that,  if  the  state 
descends  into  the  arena  of  commercial  business  in  concert  or 
competition  with  its  citizens,  e.  g.,  in  a  banking  enterprise, 
it  goes,  in  respect  of  transactions  arising  out,  or  in  the  course 
of,  the  same,  divested  of  its  sovereignty,  and  cannot  avail 
itself  of  the  principle  nullum  tempus  occurritrcipublicse." 

»3  Be  Fox,  52  N.  Y.  530;  U.  S.  v.  feiiture  was  empliasized,  tliat  the 

Fox,  94  U.  S.  315.  subject  matter  of  tlie  statute  was 

^■*  See   U.  S.  V.   Knight,  14  Pet.  one   in    which  tlic  state    was   the 

301;  and  also  Fink  v,  O'Ncil,  lOG  cliiol'i)arty  in  iutc-rcst, — afactplaiu- 

U.  S.  372.  ly  indicating  an  intention  to  include 

^5  2  Inst.  1G9.  the  state,     without    which  ctl'ect, 

^^  Com'tli  V.  11.  11.  Co.,  3  Cush.  indeed,  the  statute  would  have  been 

(Mass.)  25.  almost  inoperative. 

9'  Green  v.  U.  S.,  9  Wall.  655.  ^^  Calloway  v.  Cossart,  45  Ark. 

98  Com'th    V.  Garrigues,    28   Pa.  81. 
St.  9.     In  this  case,  the  additional 


•§§  1G8,   169]  GOVKU.NMENT.  233 

§  168.  [Wliercvcr  there  is  a  presumptiou  against  the 
existence  of  a  particular  intention  on  the  part  of  tiie  Legisla- 
ture, an  expression  by  it,  in  a  statute,  of  such  an  intention 
falls,  as  has  been  seen""  under  the  rule  requiring  a  certain 
stringency  of  construction.  Accordingly,  it  has  been  held 
that  statutes  allowing  suits  against  a  state  or  its  governor  are 
to  be  strictly  construed,  and  the  right  conferred  by  them  is 
to  be  confined  to  those  clearly  intended  to  enjoy  it,  and  not 
extended,  e.  </.,  to  aliens,  or  assignees  of  aliens.'"  But  even 
in  such  acts,  both  suits  at  law  and  in  chancery  will  be  held 
included."'] 

§  169.  Statutes  Presumed  to  have  no  Extra-territorial  Force. — 
Another  general  presumption  is  that  the  Legiftlalure  does 
not  intend  to  exceed  its  jurisdiction.  Primarily,  the  legisla- 
tion of  a  country  is  territorial.  The  general  rule  is,  that 
extra  territorium  jus  dicenti  impune  non  paretur  ;  leges 
extra  territorium  non  obligant  (a).  The  laws  of  a  nation 
apply  to  all  its  subjects  and  to  all  things  within  its  territories, 
including  in  this  expression  not  only  its  ports  and  waters 
which  form,  in  England,  part  ot  the  adjacent  country,  but  its 
ships,"^  whether  armed  or  unarmed,  and  the  ships  of  its  sub- 
jects on  the  high  seas  or  in  foreign  tidal  waters  and  foreign 
private  ships  within  its  ports."*  They  apply  also  to  all  for- 
eigners within  its  territories  as  regards  criminal  (J),  police, 
and,  indeed,  all  other  matters,""  except  some  questions  of 
personal  status  or  capacity,  in  which,  by  the  comity  of  nations, 
the  law  of  their  own  country,  or  the  lex  loci  actiis  or  contractus 

"0  Ante,  §127.  f orce,  e.  </. ,  a  prohibitioa  against 

"*i  Rose    V.    Governor,  24  Tex.  departing  without  a  clearance. 

496.     Sec  ante,  §  154.  (6)  [See  Carlisle  v.  U.S.,  10  Wall. 

1"^  State  V.  Cuiran,  13  Ark.  321.  147;  People  v.  McLeod.  25  Wend. 

See  ante.  8  77.  (N.  Y.)  483.  573;    1    Hill.    377;   1 

(rt)  Dig.  3,  1,  20.  Bish.,  Cr.  L.,  §  124;  Bish.,  Wr.  L., 

'"^  See  U.  S.  V.  Holmes,  5  Wheat  §  141.]     So  that  an  American  com- 

413.  mittiug  a  crime   in   Ilollaiul   and 

•0'  Thus  it  was  held,  in  U.  S.  v.  flying \o  England  is  regarded  as  a 

Diekelman,92  U.  S.  520,  that,  izen-  Dutch  subject  for  the  purposes  of 

erall}',  a  merchant  vessel  entering  extradition:  K.  v.  Ganz,  9  Q.  B.  D. 

the  port  of  a  foreign   country  for  93,  51  L.  J.    419;    and   see   Atty.- 

the  purpose  of  traile,  whether  in  Genl.  v.  Kwok  Ah   Sing,  L.  R.  5 

time  of  war  or  peace,  is.  while  she  P.  C.  179.     See  Addenda. 

remains,  subject  to  the  law  there  in  '"    E.g.,    poll-tax:     Kuntz    v. 

Davidson  Co.,  6  Lea  (Tenn.)  65. 


234 


EXCESS  OF  roWER?,   ETC. 


[§1G» 


applies  {a).  It  is  true  this  iloes  not  coinprise  the  wliolc  of  the 
le^ntiiiiut(3  jurisdiction  of  a  State  ;  for  it  lias  a  right  to  impose 
its  legislation  on  its  subjects,  natural  or  naturalized  (h)  in 
every  part  of  the  world  (c);  ["  that  is  to  saj,  when  they  return 
within  its  territorial  jurisdiction  so  as  to  give  an  oppor- 
tunity to  exercise  sovereignty  over  them."""]  Indeed,  on 
such  matters  as  personal  status  or  capacity  it  is  understood 
always  to  do  so(^)  ;  but,  with  that  exception,  in  the  absence 
of  an  intention  clearly  expressed  or  to  be  inferred  either  from 
its  language  or  subject  matter,  or  history  of  the  enactment, 
[in  such  manner  as  to  admit  of  no  other  rational  interpreta- 
tion,""] the  presumption  is  that  the  Legislature  does  not 
design  its  statutes  to  operate  on  them,  beyond  the  territorial 
limits  of  its  jurisdiction   (<?).     They  are,    therefore,    to  be 


(a)  See  Niboyet  v.  Niboyet,  4  P. 
D.  19,  per  Brett,  L.  J.;  Sun  Theo- 
doio  V.  San  Tbcodoio,  5  P.  D.  79  : 
Story,  Coafl.  L.,  100,  etseqq.  comp. 
Worms  V.  De  Vaklcjr,  49  L.  J.  Ch. 
201;  Le  Sneur  v.  Le  Sueur,  1  P.I). 
139;  Firebrace  v.  Firebrace,  4  P.D. 
6o.     [See  Sedgw.,  pp.  oG-o?.] 

{b)Co.  Litt.  129a;  Slory.  Confl. 
L.,  ^  21;  Sussex  Peera<i;e,  11  CI.  & 
F.  85,  1^6;  Mette  v.  Mette,  1  Sw. 
&  Tr.  416,  28  L.  J.  P.  &  M.   117. 

(c)  Our  lawbasat  different  times 
made  treason,  treason-felony,  burn- 
ing tbe  Queen's  sbips  and  maga- 
zines, breacbes  of  tbe  foreign  En- 
listment Act,  liomicide,  bigamy, 
and  slave  dealing  punisbable  wbeu 
committed  by  Hrilisli  subjects  in 
any  part  of  the  world;  also  any 
offences  committed  by  tbem  on 
board  any  foreign  ship  to  wliicli 
tliey  do  not  belong  (30  &  -'1  Viet. 
121);  also,  offences  by  I  hem  in 
native  States  in  India  (33  Geo.  3, 
c.  52,  s.  07),  in  Turkey,  China, 
Siam,  and  Japan  (0  &  7  Vict.  c. 
94,  and  2S  &  29  Vict.  c.  116);  and 
in  some  i)arts  of  Africa,  Australia, 
and  Polynesia  (6  &  7  Wra.  4.  c.  57; 
24  &  25' Viet.  (;.  31;  26  &  27  Vict. 
c.  35;  34  Vict.  c.  8;  9  Geo.  4,  c.  83; 
35  &,  36  Vict.  c.  19). 

""^  Sedgw. ,  p.  57. 

('/)  See  ex.  gr.  Brook  v.  Brook, 
27  L.  J.  Cli.  401;  Story.  Confl.  L., 
§114;    Lollev's    Case,  1  R.    &  K. 


236.  See  also  Story,  Confl.  L.,  § 
lUO  et.  seqq. ;  Wheat.  Elem.  Inter- 
nal. L.,  pt.  2,  c.  2,  ss.  6,  7. 

i"'  Bond  V.  Jay,  7  Crancb  350; 
Farnum  v.  Canal  Corp.,  1  Summ. 
46. 

(e)  Ro.se  v.  Ilinclv,  4  Crancb, 
241,  per  .Marshall  C."  J.;  Tiie  Zoll- 
vercin,  Swab.  90,  per  Dr.  Lushing- 
ton;  Cope  V.  Doherty.  4  K.  &  J. 
357,  2  DeG.  &  J.  614,  27  L.  J. 
Ch.  660.  [So  that,  prima  facie,  a 
British  statnte  is  not  applicable, 
e\xn  as  between  British  sul)jects, 
in  a  foreign  jurisdiction  :  Henry  v. 
Stuart,  14  Pliila.  (Pa.)  110.  See, 
also,  Bish..  Wr.  L.,  5^  141,  citing 
tbe  following  American  cases  :  tJ. 
S.  V.  P.evans,  3  Wheat.  336;  U.  S. 
V.  Wiltberger.  5  Id.  76  ;  U.  S.  v-. 
Holmes,  Id.  412;  People  ^'-  C«sar, 
1  Parker  645.  7;  Vandeventer  v. 
R.  1{.  Co.,  27  Barb.  ( N.  Y.)  244; 
Bishop  v.  Barton,  2  lluu  (X.  Y.) 
436;  Com'th  v.  Green,  17  Mass. 
515,  540;  Mitchell  v.  Tibbets,  17 
Pick.  (.Mass.)  298;  Com'th  v.  Har- 
ris, 13  Allen  (Mass.)  534;  Hildretk 
V.  Heath,  1  III.  App.  82;  Hover  v. 
Pa.  Co..  25  Ohio  St.  6()7;  3lcCarthy 
V.  R.  R.  Co.,  18  Kan.  46.  And 
for  application  of  the  same  princi- 
ple to  a  municipal  by-law:  St. 
Louis  Gas  Light  Co.  v.  St.  Louis, 
46  Mo.  121. 

[That,  however,  a  st.ate  may 
pass  laws  authorizing  the  doing 
of  certain   acts  outside  of  its  lim- 


§169] 


EXCESS  OF  POWKUS,     ETC. 


SSo- 


read,  usually,  as  if  words  to  that  effect  liad  been  inserted  in 
them  {a).  Thus,  a  wonuui  wlio  married  in  Enghmd,  and 
afterwards  married  abroad  durin<^  her  husband's  life,  was 
uot  indictable  under  the  Statute  of  James  I.  against  bigamy  ; 
for  the  offence  was  committed  out  of  tlie  kingdom,  and 
the  Act  did  not  in  express  terms  extend  its  proliibition 
to  subjects  abroad  (?>).  [So,  there  can  be  no  recovery 
under  a  penal  statute  for  an  offense  committed  beyond  the 
territorial  jurisdiction  of  the  state.""  A  wager  upon  a 
horse-race  outside  of  it  is  not  illegal, '"^  and  a  state  law  con- 
cerning boats  and  vessels  is  limited  to  such  as  are  used  iA 
naviijatino'  tlie  waters  of  the  state.""  So,  a  contract  entered 
into  on  Sunday,  in  another  state,  cannot  be  declared  void 
except  upon  proof  that  the  law  of  the  state  where  it  was 
made  rendered  it  so."*  Equally  well  settled  is  the  principle 
that  the  power  of  taxation,  however  vast  in  its  character 
and  searching  in  its  extent,  is  necessarily  limited  to  subjects 
within  the  jurisdiction  of  the  state ;"'  i.  e.,  to  persons 
and  property  within  the  same."'  An  act  conferring  powers 
upon  married  women  ai)plies  only  to  those  who  are  resident 
and  carrying  on  business  in  the  state."*]  The  5  &  6  Will.  4, 
c.  63,  which  pruhil)its  the  sale  of  liquids  otherwise  than  by 

its,  and  doclaiing  their  effect 
witliiu  the  same,  see  Chandler  v. 
Main,  16  Wis.  398.] 

(a)  Per  l-'ollock,  C.  B.,  in  "Rosseter 
V.  Cahhnann,  8  Ex.  301;  and  per 
Cur.  in  Tlie  Ainalia,  1  Moo.  N.  S. 
471.  [A  detailed  examination  of 
the  numerons  decisions  that  apply 
this  principle  and  detine  the  precise 
limits  of  its  operation,  belongs  to  a 
work  npon  the  Conflict  of  Laws. 
What  follows  above  may  be  regard- 
ed merely  as  ilhistrativo.] 

(b)  1  Jac.  1,  c.  11;  1  Hale  P.  C. 
693. 

>««  Peterson  v.  Walsh,  1  Daly 
(KY.)182. 

'09  Ross  V.  Green,  4  Uarr.  (Del.) 
308. 

"»  Noble  V.  The  St.  Anthony,  13 
Mo.  261 ;  Twitchcll  v.  The  .Missonri, 
Id.  413.  And  see,  as  to  the  right 
to  seize  liquors  in  transit  through 
a  state:  State  v.  Cobaugh,  78  3ie. 
401. 

"•  Adams  v.  Gay,  19  Yt.  358. 


"•^  Com'th  V.  Standard  Oil  Co., 
101  Pa.  St.  119,  at  p.  14").  per  Pax- 
son,  ■!.,  citing  State  Tax  on  Foreign 
held  Bonds,^15  Wall.  319;  McCul- 
locli  V.  State,  4  Wheat.  31G;  IMaltby 
V.  R.  R.  Co.,  52  Pa.  St.  146. 

"^  Cleveland,  etc..  R.  R.  Co.,  v. 
Pennsylvania,  15  Wall.  300.  Real 
estate  is  property  within  the  state  : 
see  post  g  174;  but  ])ersonal  prop- 
erty of,  such  as  debt  owing  to,  a 
non-resident,  though  by  residents, 
has  no  situs  independent  of  the 
domicile  of  the  owner:  Kirtland  v. 
Ilotchkiss,  100  U.  S.  491.  But  seo 
Mich.,  etc.,  R.  R.  Co.  v.  Slack,  Id. 
595;  U.  S.  v.  Erie  Railway,  106  Id. 
327.  And  see  as  to  money  owingby, 
and  evidenced  by  bonds  of,  a  cor- 
poration of  the  state:  ^lallby  V.  R. 
R.  C'c).,  supra,  disregarding  tlie  con- 
stitutional question  involved. 

"^  Waldron  v.  Rilchings,  9  Abb. 
Pr.  N.  S.  (N.  Y.)  359.  "'And    see 
Hill  V.  Wright.  129  Mass.  296. 
As  to  diviircc  laws,  see  Addenda. 


236  EXCESS  OF  POWERS,  ETC.  [§   170 

imperial  measure,  would  not  be  considered  as  affecting  a 
contract  between  British  subjects  for  the  sale  of  palm  oil  to 
be  measured  and  delivered  on  the  coast  of  Africa  {a).  A 
different  construction  would  have  involved  the  absurd  sup- 
position that  the  Legislature  intended  that  English  subjects 
should  carry  English  measures  abroad  (b)  ;  besides  setting 
aside,  by  a  side-wind,  the  general  principle  that  the  validity 
of  a  contract  is  determined  by  the  law  of  the  place  of  its 
performance.  Under  that  general  principle,  any  statute 
which  regulated  the  formalities  and  ceremonials  of  marriage, 
^ttould,  in  general,  be  limited  similarly  in  effect  to  the  terri- 
torial jurisdiction  of  Parliament  (c). 

§  170.  Exceptions. — But  a  different  intention  may  be 
readily  collected  from  the  nature  of  the  enactment.  The 
whole  aim  and  object  of  the  Royal  Marriage  Act  (12  Geo.  3, 
c.  11),  for  instance,  which  was,  according  to  the  preamble, 
to  guard  against  members  of  the  royal  family  marrying 
without  the  consent  of  the  sovereign,  and  which  makes  null 
and  void  the  marriage  of  every  descendant  of  George  II. 
withont  the  consent  of  the  reigning  sovereign,  would  have 
been  defeated,  if  a  marriage  of  such  a  descendant  in  some 
place  out  of  the  British  dominions  had  not  fallen  within  it. 
It  was  accordingly  held  that  the  Statute  imposed  an 
incapacity,  which  attached  to  the  person  and  followed  him 
all  over  the  world  (t?)  ;  though  the  marriage  were  valid 
according  to  the  law  of  the  country  where  it  was  cele- 
brated {e).  So,  the  5  &  6  Will.  4,  c.  54,  which  declared  "  all 
marriages  between  persons  within  the  prohibited  degrees" 

{(i)  Rosseter  v.  Cahlmann,  8  Ex.  expressly,  it  can  ordinarily  relate 

CGI.  only  to  the  laws  of  the  govi'riinietit 

Qj)  Per  Parke,  B.,  Id.  making   such  reference:   Houston 

(c)  Scrimsbire    v.    Scrimsbire,   2  v.  Moore,  5  Wbeat.  1,  42  ;  and  the 

Uagg.  Cons.  371,  Story,  Confl.  L.,  U.  S.,  in  passing  a  statute  devolv- 

§  121.     [A  state  statute  relating  to  ing  upon   any   officers    particular 

crimes    and    punishments  is    not  poweis    or    duties    must,    in    the 

applicable  to  crimes  committed  by  absence  of  any  expressions  to  the 

Indians  against   each  other,  while  contrary,  be  considered  as  referring 

living  in  their  tribal  relations,  the  to  their  own    officers    alone:    Re 

tribe  being  recognized  and  treated  Bruni.  1  Barb.  (N.  Y.)  187,  209.]*' 
as  such  by  the  federal  government:         {d)  The  Sussex  Peerage,  11  CI.  <& 

State  V.  McKenney,  18  Nev.   182.  F.  85. 

So, -whenever  in  the  statutes  of  any         (e)  Swift    v.    Swift,   3    Knapp, 

government  a  general  relereuce  is  257. 
made  to  law,  either  implicitly  or  •  See  Addenda. 


§  171]  EXCESS  OF  roWEltS,  ETC.  237 

null  and  void,  was  held  to  create  a  personal  incapacity  in  all 
British  subjects  domiciled  in  the  United  Kingdom,  though 
man-led  in  a  country  where  such  marriages  arc  valid  {a). 
AVhcre  an  Englishman,  after  marrying  an  Englishwoman  in 
England,  became  domiciled  in  America,  it  was  held  that  lie 
continued  subject  to  the  English  Divorce  Act  (h). 

§  171.  Presumption  against  Intent  to  Exceed  Legislative  Func- 
tions and  Powers.  Natural  Laws. — [It  must,  however,  be  pre- 
sumed, not  only  that  the  Legislature  does  not  intend  to 
exceed  its  territorial  jurisdiction,  but  that  it  does  not  mean 
to  travel  beyond  its  legitimate  functions  generally.  It  is  a 
truism  to  say  that  the  Legislature  cannot  alter  the  course  of 
nature.'"  But  that  it  does  not  intend  to  do  such  a  thing,  is 
a  presumption  which  may  be  important  in  the  construction 
of  a  statute.  "  It  is  beyond  even  the  power  of  the  Legis- 
lature" it  was  said  in  one  case,"* "  to  make  that  a  party  wall 
which  is  not  a  party  wall.  Xo  doubt,  they  might  have  made 
provisions  to  the  effect  that  that  which  is  not  a  ]>arty  wall,, 
shall,  for  the  purpose  of  a  j)articular  act  of  Parliament,  be 
deemed  a  party  wall ;  but  they  cannot  make  what  is  not  a 
party  wall  a  party  wall  any  more  than  thej'  can  make  a  square 
a  circle;"  and  accordingly  certain  rights  were  conceded  to  one 
of  the  parties  interested  in  the  wall  in  question,  which  had 
been  rebuilt  under  the  act  and  treated  as  though  it  were  a  party 

(a)  Brook  v.  Brook,  27  L.  J.  Ch.  C.  B.  N.  S.  861 ;  if  not  in  every  otlier 

401  ;    9    li.    L.    193.      See  Storv,  part    of  the   world  also  :   ttee  per 

Confl.  L.,  §  86,  and  also  §100.    "  Bramwell,  B.,  29  L.  J.  C.  P.  353  : 

{b)  Deck  V.   Deck,  29  L.    J.    P.  though  it  was  not  in  express  terms 

M.  &  A.  129;   see  Bond  v.   Bond,  declared  to  be  applicable  abroad. 

Id.    143.      This  wider    effect    has  As  the  Courts  of  British  Colonies 

been  given  even  to  a  criminal  stat-  were  empowered  by  Act  of  Parlia- 

ute,  where  such  must  have   been  meut  to   punish    certain    offences 

manifestly  its  intention.      The  5  committed     at    sea    witli,    among 

Geo.    4,    c.    113,    wiiich    made    it  other  things,    transportation,    the 

felony  for   "  afiy  persons  "  to  deal  Act   which    abolished    transporta- 

in  slaves,  or  to  transport  them,  or  tion   and   substituted   penal    servi- 

equip  vessels  for   their   transport,  tude,    was   held    to   extend   to  the 

Avas  held  to  apply  to  British  sub-  Colonies,  though  it  made  no  men- 

jects  committing  any  such  offences  tion  of  them  :  "l2  &  13  Vict.  c.  96  ; 

on  the  coast  of  Africa,  the  norori-  20  &  21  Vict.  c.  3  ;  R.   v.  Mount, 

ons  scene  of  the  crimes  which  it  L.  R.  6  P.  C.  283. 

■was   the    object    of    the    Act    to  "^   Crow     v.    RamseJ^     Sir  T. 

suppress  :   R.  v.  Zulueta,  1  Car.  &  Jones,  at  p.  12. 

K.  215  ;   Santos  v.  Illidge,  0  C.  B.  ""  Weston  v.    Arnold,   L.   R.    8 

N.  S.  841,  28  L.  J.  317  ;  overruled  Ch.  1084,  1089. 
oa  another  point,  29  L.  J.  348,  8 


238  EXCESS  OF  POWERS,   ETC.  [§§  172,  173 

wall,  entirely  inconsistent  Avith  tliat  assumption.  So,  in  the 
constrnction  of  the  Pennsylvania  married  woman's  act  of  1848 
the  Snpreme  Court  of  that  state  declared  :  "  It  is  a  radical 
niistake  to  suppose  that  the  act  intended  to  convert  the  wife 
into  a  feme  sole,  so  far  as  relates  to  her  property.  That  is 
impossible  while  she  is  to  continue  to  discharge  the  duties  of 
a  wife  ;'""  and  accordingly  certain  powers  were  held  not  to 
be  conferred  by  the  gcn.eral  language  of  the  act  which  wore 
deemed  inconsistent  with  the  existence  and  incidents  of  that 
relation.  So  again,  in  construing  an  act  which  conterred 
legitimacy  upon  illegitinu\te  children  whose  parents  subse- 
quently intermarried  so  as  to  render  such  children  capable  of 
inheriting  from  an  ancestor  to  the  same  extent  as  if  born  in 
lawful  wedlock,  whilst  it  was  held  that  this  was  within  the 
power  of  the  Legislature,  it  was  said  to  be  "  equally  true  that 
it  is  n(^t  possible  for  any  Legislature  to  make  that  a  fact  which 
is  not  a  fact ;"  and  consequently  one  born  out  of  lawful  wed- 
lock, but  legitinuited  under  that  act,  could  not,  by  virtue  of 
it,  take  by  purchase  under  a  limitation  in  a  prior  deed  of 
trust  to  "  lawfully  begotten  "  children.'" 

§  172.  Presumption  against  Invasion  of  Judicial  Functions. — 
[Nor,  ordinarily,  will  the  Legislature  be  presumed  to  intend  a 
departure  from  its  own  and  an  invasion  of  the  judiciary's 
proper  functions,  by  a  declaratory  act  contrary  to  the  con- 
struction already  put  by  the  courts  upon  tiie  law  thus 
explained,  so  as  to  make  the  new  construction  dechired  a[)pli- 
cable  to  any  but  future  cases."' 

§  173.  Presumption  against  Intent  to  Bind  Future  Legislatures.— 
[Nor  yet,  can  die  Lcirislature  be  presumed  to  intend  an  ex- 
cessive assumption  of  power,  such  as  would  be  involved  in 
a  design  to  bind  a  future  Legislature.*'"     Consequently,  the 

'"  Bear's  Adm'r  v.  Bear,  33  Pa.  (Ky.)   37  ;  Gilleland  v.  Schuyler,  9 

St   525   5''8  K""-  569  ;   Files  v.  Fuller,  44  Ark. 

ii«  Edwards' App.,  108  Pa.    St.  273.      Any  departure,  by  a  suhse- 

283  290.  quent     Legislature    trom    a    rule 

"3~^See   this  subject  more   fully  enacted  by  a  prior  one  operates  as 

discussed,  post  ^^5  291-293.  an  imi)lied  repeal  thereof  .-see  Kd- 

1-'"  This  cannot  be  done,  except  logg  v.    Oshkosii,    14   Wis.    023; 

by  an  act    which   is,    in  effect,  a  Brighlman  v.  Kirner,    22   Id.  54  . 

contract :   State  v.  Oskins,  28  Ind.  Wall  v.  State,  23  Ind.  150;  niira,  u. 

869  ;   Swift   v.   Newport.  7  Busli  123.     See  Addenda. 


§IT4] 


EXCESS  OF  POWKK.S,    ETC. 


239* 


word  "  forever,"  in  a  statute,  not  aniouiitin<^  to  a  contract,  i.s 
to  be  understood  as  nieaniiii^  simply  until  clianged  by  law.'^' 
So  the  provision  in  a  general  repealing  act,  that  "  no  offence 
committed  or  penalty  incurred  previous  to  the  time  wlien  any 
statutory  provisiDii  shall  be  repealed,  shall  be  affected  by  such 
repeal,"  was  construed  as  relating  solely  t(j  tlie  acts  repealed  by 
tlmt  act,  and  to  have  no  rcsj)ect  to  subsequent  legislation,  it 
being  held  to  be  beyond  the  power  of  the  Legislatui'e  to 
declare,  in  advance,  the  intent  of  subsequent  legislation  or  its 
effect  upon  existing  statutes.'"  And  a  provision  restricting 
counties,  etc.,  from  issuing  bonds  in  aid  of  the  construction 
of  a  railroad  "  by  virtue  of  the  authority  of  any  other  law  of 
this  state,"  was  held  not  to  refer  to  any  future  enactments.'"] 

^  174-.  Presumption  against  Violation  of  International  Lavr. 
Treaties. —Under  the  same  general  presumption  that  the 
Legislature  does  not  intend  to  exceed  its  jurisdiction,  every 
statute  is  to  be  so  interpreted  and  apj'lied,  as  far  as  its  lan- 
guage admits,  as  not  to  be  inconsistent  with  the  comity  of 
nations,  or  with  the  established  rules  of  international  law  {a). 
If,  therefore,  it  designs  to  effectuate  any  such  object,  it  must 
express  its  intention  with  irresistible  clearness,  to  induce  a 
Court  to  believe  that  it  entertained  it ;  for  if  any  other  con- 
struction is  possible,  it   would  be  adopted,  in  ordei'  to  avoid 


'*"  See  Case}'  v.  llarued,  5  Iowa, 
1.  Hence  a  general  act  providing- 
a  inetliod  for  tlie  change  of  county 
seats  is  not  repealed  by  a  special 
and  temporary  act  for  that  pin- 
pose  relating  to  a  single  county, 
although  the  latter  declared  that 
the  place  selected  under  it  should, 
forever,  be  the  county  seat  thereof: 
Ibid. 

'-'■'  Mongeon  v.  People,  55  N.  Y. 
(513.  Even  a  general  act  saving 
actions,  etc.,  under  repealed  stat- 
utes is,  in  Files  v.  Fuller,  44  Arlv. 
2T3,  280,  said  to  have  very  little 
importance  save  in  hermeneutics, 
no  Legislature  having  the  power  to 
prescribe  to  courts  rules  of  inter- 
pretation, or  to  lix  as  to  future 
Legislatures  any  limits  of  power  as 
to  theelfect  of  "their  action  ;  whilst, 
on  the  other  hand,  the  retention  of 
such  a  statute  by  a  subsequent  Leg- 


islature is  admitted  to  be  persuasive 
that  that  Legislature  meant  to  act 
in  harmony  with  it.   See  ^  484,  u. 

'-'»  Oleson  V.  n.  [{.  Co.,  3(j  Wis. 
383.  The  jiassage  of  any  subse- 
quent statute  conflicting  with  it, 
would  repeal  it  pro  tauto:  Ibid. 

(a)  Per  Maule,  J.,  in  Lcroiux  v 
Brown,  12  C.  B.  801,  23  L.  J.  C. 
P.  8  ;  Bluntschii,  Voellierrecht,  s. 
847  ;  ])(■>•  Dr.  Lushingtou  in  The 
Zollvereiu,  Swab.  98,  and  The 
Annapolis,  Lush.  295.  [As  to  the 
stales  of  the  Union,  "while  recog- 
nizing the  central  federal  authority', 
resulting  from  the  Constitution  of 
the  United  Stales,  they  hoKl  in 
regard  to  each  other,  with  the 
exception  of  the  cases  governed  by 
that  insirument,  tlie  position  of 
inilependt'nt  and  foreign  powers:" 
Seilgw.  p.  UO.] 


240  EXCESS  OF  POWERS,  ETC.  [§  17-£ 

imputing  such  an  intention  to  the  Legislature  (a).  All 
general  terms  must  be  narrowed  in  construction  to  avoid  it 
(5).  For  instance,  although  foreigners  are  sul)ject  to  the  crim- 
inal law  of  the  country  in  which  they  commit  any  breach  of 
it,  and  also,  for  most  purposes  to  its  civil  jurisdiction,  a 
foreign  sovereign,  an  ambassador,  the  troops  of  a  foreign 
nation,  and  its  public  property  arc,  by  the  law  of  nations, 
not  subject  to  them  (c),  and  statutes  would  be  read  as  tacitly 
embodying  this  rule.  So,  it  is  an  admitted  principle  of 
public  law,  that,  except  as  regards  pirates  jure  gentium,  and, 
perhaps,  nomadic  races  and  savages  who  have  no  political 
organization  (cZ),  a  nation  has  no  jurisdiction  over  offences 
committed  by  a- foreigner  out  of  its  territory,  including  it& 
ships  and  waters  as  already  mentioned  {e)  ;  and  the  general 
language  of  an}'  criminal  statute  would  be  so  restricted  in 
construction  as  not  to  violate  this  principle.  Thus,  the  0 
Geo.  4,  c.  31,  s.  8  (re-enacted  by  the  24  &  25  Vict.  c.  100, 
s.  10),  which  enacted  that  when  any  person,  feloniously 
injured  abroad  or  at  sea,  died  in  England,  or  receiving  the 
injury  in  England,  died  at  sea  or  abroad,  the  offence  should 
be  dealt  with  in  the  country  where  the  death  or  injury 
occurred,  would  not  authorize  the  trial  of  a  foreigner  who 
inflicted  a  wound  at  sea  in  a  foreign  ship,  of  which  the 
sufferer  afterwards  died  in  Englatid  (/").  So,  it  has  been  re- 
peatedly decided  in  America  that  an  Act  of  Congress  which 

(a)  Per  Cur.  in  U.  S.  v.  Fisher,  Elern.  Internrit.  L.  pt.  2,  c.  2,  s.  9  ; 
S  Crancb,  390,  and  Murray  v.  Tiie  Parlenient  IMge,  5  P.  D.  197; 
Charming  Betsy,  Id.  118.  K  v.  Anderson,  L.  R.  1  C.  C.  ICl; 

(b)  Per  Lord  Stowell  in  Le  R.  v.  Seberg,  Id.  264 ;  R.  v.  Carr, 
Louis,  2  Dods.  229.  10  Q.  B.  D.  76  ;   R.  v.  Lopes,  1  D. 

(c)  Wheat.  Elera.  Int.  L.,  pi.  2,  &  B.  525,  27  L.  ,1.  M.  C.  4S  ;  R.  v. 
c.  2  ;  and  see  tiie  cases  collected  in  Sattler,  Id.  ;  R.  v.  Lesley,  1  Bell, 
The  Pailement  Beige,  5  P.  D.  197;  220,  29  L.  J.  M.  C.  97.  See  as  to 
The  Constitution,  4  P.  D.  39,48  ships,  the  judgraeut  of  IJiulley,  J., 
L.  J.  13.  in  R.  V.  Keyu,  2  Ex.  D.  93,  94. 

(d)  See  ex.  gr.  Ortolan,  Dipl.  de  (/")  R.  v.  Lewis,  Dears.  &  B. 
la  Mer,  i.  285.  By  the  34  Vict.  c.  182;  and  see  R.  v.  Depardo. 
8,  oltences  committed  within  1  Taunt.  26  ;  R.  v.  De  Mattos, 
twenty  miles  from  our  West  Afri-  7  C.  &  P.  458;  Nga  Hoong  v.  R., 
canSetllements  on  British  subjects,  7  Cox,  489;  R.  v.  Bjornsen,  34 
or  residents  within  those  settle-  L.  J.  M.  C.  180.  The  267th 
meiits  by  persons  not  the  subjecis  section  of  tlie  Merc.  Shii)ping  Act 
of  any  civilized  power,  are  made  of  1854,  would  seem  for  this  reason 
cognizable  by  the  Superior  Courts  limited  to  British  subjects  ;  and 
of  the  Settlements.  sect.  527  ;  Harris  v.  Franconia,  3. 

(e)  Sup.  §  169.     See  Wheaton's      C.  P.  D.  173. 


174] 


EXCESS  OF  I'uWERS,  ETC. 


241 


enacted  that  any  person  coinniittin^  robbery  in  "any  vessel 
on  tlie  liii^li  seas"  should  be  gnilty  of  piracy,  applied  only 
to  robbery  in  American  vessels,  and  not  to  robbery  in  foreign 
vessels  even  by  an  American  citizen  (a). 

So,  as  it  is  a  rule  of  all  systems  of  law  that  real  property 
is  exclusively  subject  to  the  laws  of  the  State  within  whose 
territory  it  lies,  [to  the  extent  of  making  it  properly  taxable 
therein,  though  its  owner  be  a  foreigner,'"]  any  Act  whicli 
dealt  in  general  terms  with  the  real  estate  of  a  bankrupt  or 
lunatic,  for  instance,  would  be  construed  as  not  extending  to 
his  lands  abroad  (b). 

It  being  also  a  general  principle  that  personal  property 
has,  except  for  some  purposes,  such  as  probate  (c),  no  other 
situs  than  that  of  its  owner,  the  right  and  disposition  of  it 
are  governed  by  the  law  of  the  domicile  of  the  owner,  and 
not  by  the  law  of  their  local  situation  {d).  Where  an  Act 
imposes  a  burden  in  respect  of  personal  property,  it  would 
be  construed,  as  far  as  its  language  permitted,  as  not  intended 
to  contravene  the  general  principle  {e).  Thus,  the  36  Geo. 
3,  c.  52,  which  imposed  a  duty  on  "  every  legacy  given  by 
any  will  of  any  person  out  of  his  personal  estate,"  and  the 
Succession  Duty  Act,  IG  &  17  Vict.  c.  51,  which  imposes  a 
duty  on  every  ''disposition  of  property  "  by  which  "any 
person  "  becomes  "  entitled  to  any  property  on  the  death  of 
another,"  was   held  not  to  apply  where  the   deceased   was  a 


(a)  U.  S.  V.  Howard,  3  Wash. 
:!40  ;  U.  S.  V.  Palmer,  JJ  Wheat. 
010  ;  U.  S.  V.  Kliulock,  5  AVhcat. 
1-44 ;  U.  S.  V.  Kesslcr,  Bald.  15, 
cited  bv  Cockburn,  C.  J.,  in  R.  v. 
Keyii,  2  Ex.  D.  172. 

1^-*  jMallby  v.  R.  R.  Co.,  53  Pa. 
St.  146. 

(b)  Selkiig  V.  Davies,  2  Rose, 
;U1,  2  Dow.  250;  Cockerell  v. 
Dickens,  3  Moo.  P.  C.  lo3  See 
also  Sill  V.  Worswick,  1  II.  El. 
6G5  ;  Phillips  v.  Hunter,  Id.  403  ; 
Hunter  v.  Potts,  4  T.  R.  183;  Re 
Blithniau,  L.  R.  1  Eq.  23  ;  Freke 
V.  Carbery,  16  Eq.  461  ;  Waite  v. 
Binglev.  21  Ch.  D.  674;  Slory, 
Coull.  L.,i^§438,  551,  &c. 

(c)  Aud  see  Hart  v.  llerwig,  L. 
R.  8  Ch.  860. 

(d)  Story,  Confl.  L.,  §  376.  [See 
ante,  note  113.] 

16 


(e)  See  ex.  gr.  Grenfell  v.  In- 
land Rev.  Com. ,  1  Ex.  D.  243.  [But 
although  tbe  general  rule  is  that 
the  place  of  sale  of  persoual  [iroperty 
is  the  point  at  which  the  goods 
ordered  are  set  apart  and  delivered 
to  the  purchaser,  or  to  a  common 
carrier,  who,  for  the  purposes  of 
delivery,  repiesents  him:  Gar- 
braeht  v.  Com'th,  96  Pa.  St.  440  : 
it  was  held  in  Stale  v.  Ascher.  54 
Conn.  239,  Park.  C.  .1.,  diss.,  ih;U  a 
Connecticut  act  forbidding  all  per- 
sons without  license  to  sell  intoxi- 
cating liquors  "by  sample,  or 
soliciting  or  procuring  orders."  was 
violated  by  a  contract,  made  in 
Conueclicut  by  a  traveling  ngent  of 
a  lirm  of  another  state,  for  the  t^alo 
of  liquors  to  be  delivered  in  the 
latter.  Compare,  however,  Gar- 
bracht  v.  Com'th,  supra ;  and 
§  454.] 


242  EXCESS  OF  POWERS,    ETC.  [§  175 

foreigner,  or  even  a  British  subject  domiciled  abroad,  tbougli 
the  property  was  in  Enghmd  («),  But  they  would  affect 
personal  property  abroad,  if  the  deceased  was  domiciled  in 
England,  though  a  foreigner  (b).  [So,  under  the  Pennsyl- 
vania act  imposing  a  collateral  inheritance  tax  upon  all 
estates  passing  from  any  person  wlio  may  die  seized  or 
possessed  of  such  estate,  being  within  the  commonwealth, 
by  will  or  under  the  intestate  laws,  it  was  held,  that,  when 
neither  the  personal  j^roperty  nor  the  domicile  of  its  owner, 
though  born  a  citizen  of  Pennsylvania,  but  settled  elsewhere, 
is  within  the  state  at  the  time  of  his  death,  it  is  not  subject 
to  the  duty,  although  he  expressed  a  desire,  complied  with 
by  his  executor,  to  be  buried  in  the  land  of  his  birth.'"  Nor 
.  is  personal  property,  e.  g.,  bonds,  deposited  by  one  who  is  a 
citizen  of  another  state  and  domiciled  there,  with  a  trust 
company  in  Pennsylvania,  liable  to  the  tax/'"  But  the  per- 
sonalty of  a  citizen  of  Pennsylvania,  derived  either  from 
within  or  without  the  state,  is  liable.'"  Not  so,  however, 
his  real  estate  situated  in  another  state."*] 

§  175.  It  is  hardly  necessary  to  add,  however,  that,  if  the 
lansruasre  of  an  Act  of  Parliament,  unambiguously  and 
without  reasonably  admitting  of  any  other  meaning, 
applies  to  foreigners  abroad,  or  is  othei'wise  in  conflict 
with  any  principle  of  international  law,  the  Courts  must 
obey  and  administer  it  as  it  stands,  whatever  may  be 
the  responsibility  incurred  by  the  nation  to  foreign  powers 
in  executing  such  a  law  (c).     [Even  in  the   case  of   treaties, 

(a)  //i  re  Bruce,  2  Cr.  &  J.  436  ;  J.  Ch.  452. 

Ainold  V.  Arnold,  2  M.  ifc  Gr.  256;  (b)  Atty.-Genl.  v.  Napier,  6  Ex. 

Thomson  v.    The    Adv.-Geul.,    12  217. 

CI.  &  F.  1  ;  Wallace  v.  The  Atty.-  '"  Hood's  Est.,  21  Pa.  St.  106. 
Oenl.,  L.  R.  1  Ch.  1  ;  Hamilton  v.  '^e  Orcutt's  App.,  97  Pa.  St.  179: 
Dallas     1   Ch.    D.    257.   •  See  also  Comp.  Com'th  v.  Smith,  5  Id.  142. 
Udney  v.  East  India  Co.,  13  C.  B.  '"  Short's  Est.,  16  Pu.  St.  63. 
733,    22  L.    J.    260  ;    Eiichsen  v.  '^»  Diavton's  App.,    61   Pa.    St. 
Last,  50  and  51  L.  J.  Q.  B.  570  and  172  ;  Com'th  v.  Coleman's  Adm'r, 
m  ;  Ceseua  Sulphur  Co.  v.  Nichol-  52  Id.  468  ;  nor  his  pensoualty  in 
son,  1  Ex.  D.  428  ;  Calcutta  .Jute  another  State,  his  debts  there  ex- 
Co.'  V.   Nicholson,    Id.  ;    Sully   v.  cecdino-  it  in  amount  :  lb. 
Atly.-Genl.,  5  H.  &  N.  710,  2!)  T..  (e)  Per  Cur.    in   The  Marianna 
J.  464  ;    lie  Atkinson,   21   Ch.   D.  Flora.   11  Wheat.   40  ;    The  Zoll- 
100.      Comp.    the    Atty.-Genl.    v.  verein,   Swab.  96  ;  The  Johannes, 
Campbell,  L.  R.  5  II.  L.  524  ;  He  Id.   188.  30  L.  J.  P.  M.  &  A.  94  ; 
Cicala's  Settlement,  7  Cli.   D.  o51,  The  Amalia,  32  L.  J.  P.  M.  &  A. 
47"^L.  J.  166  ;  Ee  Atkinson,  51  L.  193.     As  to  the  Hovering  Acts  (39 


§  176]  EXCESS  OF  POWERS,  ETC  243 

although  laws  arc  to  be  constnied,  if  it  be  possible  to  do  so 
without  violence  to  their  language,  so  as  to  conform  with 
the  provisions  of  such,'"  yet  the  construction  which  the 
Legislature  puts  upon  them  by  statute  is  binding  upon  the 
coui'ts.  "  However  individual  judges  might  construe  a 
treaty,  it  is  the  duty  of  the  court  to  conform  itself  to  the 
will  of  the  Legislature,  if  that  will  has  been  clearly 
expressed  ;  the  courts  cannot  pronounce  the  course  of  their 
own  nation  erroneous. '^°j 

§  176.  Rights,  etc.,  of  Foreigners.  Remedies. — It  may  be 
added,  in  connection  with  this  topic,  that,  as  regards  the 
question  how  far  statutes  which  confer  exceptional  rights 
or  privileges  are  to  be  construed  as  extending  to  foreigners 
abroad,  the  authorities  are  let^s  clear.  It  has  been  said, 
indeed,  that  when  personal  rights  are  conferred,  and  persons 
filling  any  character  of  which  foreigners  are  capable  are 
mentioned,  foreigners  would  be  comprehended  in  the  stat- 
ute {a).  On  the  other  hand,  it  has  been  laid  down  that,  in 
general,  statutes  must  be  understood  as  applying  to  those 
only  who  owe  obedience  to  the  legislature  which  enacts 
them,  and  whose  interests  it  is  the  duty  of  that  legislature 
to  protect ;  that  is,  its  own  subjects,  including  in  that 
expression,  not  only  natural  born  and  naturalized  subjects, 
but  also  all  persons  actually  within  its  territorial  jurisdic- 
tion; but  that  as  regards  aliens  resident  abroad,  the  legisla- 
ture has  no  concern  to  protect  their  interests,  any  more  than 
it  has  a  legitimate  power  to  control  their  rights  (b).  In  this 
view,  it  would  be  presumed,  in  interpreting  a  statute,  that 
the  legislature  did  not  intend  to  legislate   either  as  to  their 

&  40  Vict.  c.  179,  embodying  the  of  Indians  by    State   legislation : 

16  &  17  Vict.  s.  212),  see  Le  Louis,  Fellows  v.   Denniston,  23   N.   Y. 

2D()ds.  2lo;    Churcli  v.  Hubbard,  420. 

3   Craiich.    187.     See   also  2  «&  3  (a)  PerMaule,  J.,  in  Jefferj-s  v. 

Vict.  c.  7a.  Boosey,  4  II.  L.  895. 

'•-9  U.  S.  V.  43  gal's  of  Whisky,  (b)  !See  jwr  Jeivls,  C.  J.,  in  Jef- 

108  U.  S.  491.  ferys  v.  Boosey,  4  II.  L.  946;  per 

'30  F()ster  V.  Neilson,  2  Pet.  253,  Lord    Cranworth,     Id.    955;    per 

307.     And  sec  The  Chciolcce  To-  Wood,  V.  C,  in  Cope  v.  Doberty, 

bacco,    11    Wall.    617.      But    that  4  K.  &  J.  357,  27  L.  J.   Ch.   601  ; 

rights  acquired  by   treaty  cannot  Comp.    per     Lord    Westbury     in 

be  affected  by  Acts  of  Congress,  Koutiedge  v.  Low,  L.  R.  3  H.  L. 

see  Wilson  v.  Wall,  34  Ala.  288  ;  100. 
S.  a.  6  Wall.  83  ;  nor  treaty  rights 


244  EXCESS  OF  POWERS,    ETC.  [§  176 

rights  or  liabilities  ;  and  to  warrant  a  different  conclusion, 
the  words  of  the  statute  ought  to  be  express,  or  the  context 
of  it  very  clear  («).  On  this  principle,  mainlj^,  it  was  held 
that  the  Act  of  Anno,  which  gave  a  copyright  of  fourteen 
years  to  "  the  author  of  any  work,"  did  not  apply  to  a  for- 
eign author  resident  abroad  {b).  The  decision  would  prob 
ably  have  been  different  if  the  author  had  been  in  England 
when  his  work  M-as  published  (c).  The  later  Act,  5  &  6 
Vict.  c.  45,  which  does  not  appear  to  differ  materially,  as 
regards  this  question,  from  that  of  Anne,  was  held  to  pro- 
tect a  foreig.n  author  who  was  in  the  British  dominions  at 
the  time  of  publication  (d).  It  was  held  also  that  a  for- 
eigner was  entitled  to  maintenance,  and  to  gain  a  settlement 
under  the  poor  laws  (e).  And  it  was  decided  in  the  Court 
of  Admiralty  that  the  9  &  10  Vict.  c.  93,  which  gives  a 
right  of  action  to  the  personal  representative  of  a  person 
killed  by  a  wrongful  and  actionable  act  or  neglect,  extended 
to  the  representative  of  a  foreigner  who  had  been  killed  on 
the  high  seas,  in  a  foreign  ship,  in  collision  with  an  English 
vessel  (/"),  [And  it  has  been  held  in  Georgia,  that,  where  a 
Georgia  railway  company  ran  its  road  into  Alabama,  and 
there  killed  a  man,  the  Alabama  administrator  might  bring 
suit  in  Georgia.*^'  A  resident  alien  has  been  held  capable  of 
becoming  a  corporator  and  trustee  in  a  religious  corpora- 
tion ;''"  of  enlisting  in  the  United  States  Army  ;"'  of  voting 

(a)  Per  Turner,  L.  J.,  in  Cope  v.  statutes  of  two  states  give  actions 
Doherty,  27  L.  J.  Cli.  609,  2  J)e  against  railroad  companies  for 
(J.  &  J.  624.  negligence,  suit  maybe  brought  in 

(b)  8  Anne.  c.  19;  Jeffcrys  v.  one  stale  having  jurisdiction  over 
Boosej',  4  II.  L.  815;  dubitante  the  railroad  company,  foran  injury 
Lord  Cairns  in  lioutledge  v.  Low,  done  by  it  in  another:  see  ]\If)rris 
L.  II.  3  H.  L.  100.  V.  Ry.  Co.,  6")  Iowa,  727:  Knight  v. 

(c)  Per  Lord  Cranworth,  in  Jef-  R.  R.  Co.,  108  Pa.  St.  250.  Comp. 
ferys  V.  Boosey,  ubi  sup.  Whiiford  v.  R.  R.  Co.,  98  JS'.  Y. 

(d)  Routledge  v.  Low,  L.  R.  3  377;  Richardson  v.  R.  R.  Co.,  98 
II.  L.  100.  Mass.  85;  Allen  v.    R.  R.  Co.,  45 

(e)  R.  V.  Eastbourne,  4  East,  j\Id.  41 ;  R.  R.  Co.  v.  Lacey,  43  Ga. 
103.    [Compare,  however,  Kno.\  v.  461. 

Waldborouuh,  3  JMe.  455;  Jefferson  '^i  Q.^fmneyg,.    y_    United,    etc., 

v.  Litchiiekl,  1  Id.  196.J  Churches,    2    Saudf.    Ch.  (N.  Y.) 

(/)  The  Gulfaxe,  L.  R.  2  Ad.  &  186. 

Ec.  325;  The  E.\plorer,  L.  R.  3  Ad.  "»  Coats    v.  Holbrook,    Id.  586; 

&  Ec.  289.  11  Paige,  292;  U.  S.  v.  Cottingham, 

'^•Central  R.  R.   Co.  v.  Swint,  1  Rob.  (Va.)  615.     In  Greenhcld  v. 

73Ga.  651.     And  it  has  been   re-  Morrison,    21    Iowa,    538,    it    was 

peatedly     held,    that,    where    the  licld    that    a    non-resident    alien's 


§  177]  EXCKS8  OF  POWERS,   ETC.  245 

for  corporate  or  borough  officers  ;'"  and  a  foi'eigner  residiug 
in  the  state  is  not  within  the  statute  requiring  non-resi- 
dents to  give  security  for  costs  in  actions  bivmght  by  them, 
unless  such  residence  is  shown  to  be  nierel}'  teiiiporary."*] 

§  177.  The  nature  and  measure  of  legal  remedies  are 
governed  by  the  lex  fori  ;  audit  is  no  breach  of  international 
law,  or  any  interference  with  the  rights  of  foreigners,  to 
determine  what  redress  is  to  be  given  to  suitors  who  resort 
to  our  Courts  (a).  [So,  although  it  is  conceded  that  the 
statutes  of  the  various  states  relating  to  the  property 
and  powers  of  married  women  govern  as  to  tlie  propert-y 
acquired  under  them,'^"  and  the  validity  of  contracts  entered 
into  under  them'"  so  that,  e.  ff.,  propert)'  acquired  in  Eng- 
land and  brought  to  New  York  by  a  married  woman,  was 
held  governed  by  the  English  law,'^*  and  a  married  woman's 
liability  under  the  statutes  of  Illinois,  upon  her  conti'act  of 
suretyship  for  her  husband's  debts,  there  made,  was  held 
enforceable  in  New  Jersey,  where  such  contracts  are  prohib- 
ited,""— yet  a  married  woman  domiciled  in  another  state, 
and  b}'  the  laws  thereof  holding  property  to  her  separate 
use,  in  seeking  a  remedy  torecover  for  loss  or  injury  thereto 
in  New  York,  was  held  governed  by  the  laws  thereof,  and 
consequently  entitled  to  sue  in  her  own  name.'" 

capacity  to  take  a  distributive  share  310;  Davis  v.  Zumnerman,  G7  Pa. 

of  an  intestate's  personal  property  St.  70;  Meyer  v.  McCabe,    73  Mo. 

was  unuffcclod  by  an  act  providin.L!:  236. 

that  personal    property   t;iiould  be  '•"  Wright   v.  Remington,  41  N. 

distributed  to  the  same  persons  and  J.  L.  48. 

in  the  same  proportions  as  though  '•'*  King    v.  O'Brien,    33    N.  Y. 

it  were  real  estate.  Super.  Ct.  49. 

IS*  Com'th  V.  Woelper.  3  Serg.  &  '■'»  Wright    v.  Keraington,  41  N. 

R.  (Pa.)  29;    Stewart  v.  Poster,  2  J.  L.  48. 

Binn.  (Pa.)  110,  120.  »»  Stoneman  v.  R.  R.  Co..  53  N. 

'^5  Norton   v.  MacKie,  15  N.  Y.  Y.  429.     But  see  King  v.  Martin. 

Supr.  Ct.  520.  67  Ala.  177,  where  the  right  of  a 

(a)  The  Amalia,  ubi  sup.;  The  married  woman  to  sue  alone  under 
yernon,  1  W.  Rob.  316;  Bank  of  the  laws  of  the  state  for  the  recov- 
U.  S.  V.  Donnally,  8  Peters  301.  cry  of  her  separate  estate  seems  to 
See  Jackson  v.  Spittall,  L.  R.  5  C.  be  held  confined  to  that  created  by 
P.  542  :  lie  Ilaney's  Trusts,  L.  R.  those  laAvs,  her  husband  being 
10  Ch.  275  ;  Chartered  Mevc.  B'k  deemed  a  proper  party  iilaiutilT  in 
V.  Netherlands,  etc..  Steam  Nav.  a  suit  for  the  recovery  of  licr  inter- 
Co..  L.  R.  10  Q.  B.  D.  521.  estsundertbe  lawsofanother  state. 

^'^^  See  Kuig  v.  O'Brien,  33  N.Y.  Under  the  New  York  Code  of  Civ. 

Super.  Ct.  19;  ^McCormick  v.  R.R.  Proced.  a    foreign    debtor   bring.'< 

Co.,  49  N.  Y.  303;  King  V.  Martin,  with   him   tiie    protection    of    his 

•67  Ala.  177;  Cduck    v.  ('ox,  75  Id.  home  statute  of  limitations  :  Howa 


246  EXCESS  OF  POWERS,   ETC.  [§  178 

§  178.  Presumption  against  Intent  to  Violate  Constitution. — [A 
prcsuinption  of  inucli  importance  in  this  country,  but,  of 
course  unknown  in  England,  where  tlic  courts  cannot  ques- 
tion tlie  authority  of  Parliament,  or  assign  any  limits  to  its 
power,'"  is  that  a  legislative  intent  to  violate  the  constitu- 
tion is  never  to  be  assumed,  if  the  language  of  the  statute 
can  be  satisfied  by  a  contrary  construction.'"  The  applica- 
tion of  this  rule  requires,  that,  wherever  a  statute  is  suscep- 
tible of  two  constructions,  of  which  the  one  would  make  it 
unconstitutional,  the  other  constitutional,  the  latter  is  to  be- 
adopted.'"  Where  the  language  of  an  act  will  bear  two 
constructions  equally  obvious  that  which  upholds  its  con- 
stitutionality, i.  e.,  that  which  is  in  accordance  with  the  pro- 
visions of  the  constitution,  is,  of  course,  to  be  preferred  ;"* 
as,  where  the  language  of  an  act  might  be  construed  to 
operate  in  praesenti,  in  which  case  it  would  be  unconstitu- 
tional, or,  in  futuro,  in  which  case  the  act  would  be  consti- 
tutional, the  latter  construction  was  held  to  be  impera- 
tive.'" Equally  so  would  be  a  construction,  if  the  act  will 
bear  it,  giving  it  a  prospective,  to  the  exclusion  of  a  retro- 
spective, operation,  where  the  latter  would  render  it  uncon- 
stitutional.'" Upon  this  principle,  a  statute  declaring  that 
a  trust  shall  be  deemed  to  be  discharged  after  the  lapse  of 
25  years  may,  if  necessary  to  sustain  its  constitutionality,  be 
construed  as  making  the  lapse  of  that  period  prima  facie  or 
presumptive  evidence  that  the  trust  has  been  discharged,  and 
permitting  this  2)resumption  to  be  rebutted  by  other  evi- 
dence.'"     Where  an   unconstitutional  effect  would  be  the 

V.  Welch,   3   How.  Pr.,    N.  S.  (N.  21  Id.  231;  Com'th   v.  Bennett,  16 

Y  )  4G5.  Serg.    &    R.    (Pa.)  243.     See    also 

'•"  See  1  Kent.Comm.*  447;  Bon-  Maidre  v.  Fclton,  Pliil.  L.  (N.  C.) 

Lam's  Case,  8  Rep.  118a;    Day  v.  279;  jAIcGvvigon  v.  R.  R.  Co.,  95 

Savay,  Hob.  87;  London  v.  Wood,  N.  C.  428. 

12  Mod.  (i88.  '^^  Gienada  Co.  v.  Brogden,  113 

'"-  N.  Y.,  etc.,  R.  R.  Co.  v.  Van  U.  S.  2GI. 

Horn,  57    N.   Y.  473:    French    v.  '« Palms    v.    Shawano    Co.,  61 

Tcschemaker,  24   Cal.  518;  Ally.-  AVis.  211. 

Gen.  V.    Eau  Claire,    87  Wis.  400;  '■"*  Chicago,    etc.,    R.  R.  Co.,  v. 

Brown    v.    Buzan.    24    Ind.    194;  Pounds,  11  Lea  (Tenn.)  127. 

Slack  V.  Jacob,  8  W.  Va.  012.  •"  Kip  v.  Ilirsch,  18  Abb.  N.  0. 

"3  Roosevelt  V.  Godard,  52 Barb.  (N.    Y.)     167.      See     Lathrop    v. 

(N.    Y.)    533;    ColwcH    v.    May's  Dunlop,  4  linn  (N.  Y.)  213;  S.  C. 

Landing,    etc.,   Co.,  19   N.  .T.  Eq.  03  N.    Y.  610;  Walker  v.    Hall,  84 

245;  Dancombev.Priudlc,12  Iowa,  Pa.  St.  483-486. 
1;  Iowa,  etc.,  Co.  v.  Webster   Co., 


§§  170,    180]  EXCESS  OF  I'OWEliS,  ETC.  247 

result  of  a  strict  or  narrow  construction,  a  broad  or  liberal 
one  is  commanded.  Thus,  wlicre  the  constitutionality  of  an 
act  depends  upon  the  construction  of  its  language  in  a  strict 
legal  meaning,  whicli  wouUl  have  the  effect  of  limiting  and 
destroying,  whilst  some  otlicr,  popular  acceptation  would 
support,  the  act,  the  latter  must  be  adopted.*"  Thus  the 
phrase  "owner  of  a  vehicle"  was  extended  to  embrace  the 
person  in  mediate  or  immediate  control  thereof,  whether  he 
was  the  actual  owner  or  not,  in  order  to  prevent  the  provis- 
ions of  the  act,  which  prescribed  a  penalty  of  treble  damages, 
from  operating  as  a  taking  of  one  person's  property  for  the 
acts  of  another  over  whon^  he  had  no  control.""  Similarly 
a  law  speaking  of  officers  by  their  titles  of  office,  without 
words  limiting  its  operation  to  the  individuals  in  office  at 
the  date  of  its  passage,  will  be  presumed  to  be  intended  to 
operate  upon  future  incumbents  also,  in  order  to  escape  the 
objection  of  unconstitutionality  as  a  private  or  local  law.'^ 

§  179.  Restriction  of  Language  to  Conform  with  Constitution. 
— [On  the  other  hand,  "  it  is  a  safe  and  wholesome  rule  to 
adopt  the  restricted  construction  of  a  statute,  when  a  more 
liberal  one  will  bring  us  in  conflict  with  the  fundamental 
law  ";'"  indeed  to  regard  as  excepted  by  necessary  implication 
from  even  the  most  express  and  absolute  general  provisions^ 
all  cases  to  which  a  statute  cannot  constitutionally  apply."' 

§  180.  Limits  of  Rule. — [But  the  rule  above  stated  does  not 
warrant  the  avoidance  of  unconstitutionality  in  a  statute  by 
forcing  upon  its  language,  under  construction,  a  meaning, 
which,  upon  a  fair  test,  is  repugnant  to  its  terms."'  Wliere 
the  language  will  not  fairly  bear  a  construction  consistent 
with  the  constitution,  the  courts  can  only  refuse  to  enforce 
the  act."* 

"8  Com'th  V.  Butler,  99  Pa.   St.  Y.)  400,  409.      See  also  Com'th  v. 

535,  540  :  F.  &  M.  Bank  v.  Smith,  Butler,  -supra,  at  p.  541. 

3  Seig.  &  R.  (Pa.)  63  ;  Mononga-  '^i  Op  of  .Justices,  41  N.  II.  558. 

liela  Nav.  Co.  v.  Coons,  6  Walts  "^Tiencli  v.'Peschemakcr,  24Cal. 

&  S.  (Pa.)  101.  518;  and  see  People  v.  R  K.  Co., 

'•»»  Camp  V.    Rogers,   44  Conn.  35  Id.  606  ;  Bigelow  v.  R.  R.  Co., 

291 ;  see  ante  ^  96.  37  Wis.  478  ;    Bish.,  Wr.   L.,  §  90, 

'^0  Seneca   Co.  v.  Allen,  (N.  Y.)  cit.  in  addition,    Bailey  v.    R.  R. 

1  Cent.  Rep.  71.  Co.,  4  Ilarr.  (Del.)  389. 

>5i  Sedgvv.  pp.  266-7,  cit.  People  '"  Atty-Gen.  v.   Eau  Claire,  37 

V.  B'd  of  Education,  13  Barb.  (N.  Wis.  400.      Compare  the  decision 


248  EXCESS  OF  I'OVVKKS,    ETC.  [§  181 

§  181.  statute  and  Constitution  Construed  Together. — [It  lias 
already  been  said'"  tliat  a  statute  must  be  construed  together 
with  a  constitutional  provision  in  pari  materia.""  No  depar- 
ture from  the  constitution  can  be  assumed  to  be  intended 
by  tlie  Legislature.  Hence  tlie  meaning  of  language  used 
in  a  statute  must  be  understood  to  conform  with,  and  be 
construed  with  reference  to,  the  intention  expressed  upon 
the  same  subject-matter  by  the  constitution  ;  and  the  pro- 
visions of  a  statute  must  be  understood,  on  the  one  hand,  as 
silently  embracing  those  prescribed  before  or  after  its  pas- 
sage, by  the  constitution,  or,  on  the  other  hand,  stopping 
short  of  that  for  which  the  latter  lias  made  other  provision. 
Thus,  where  the  constitution  made  all  the  stockholders  in 
corporations  chartered  under  the  laws  of  the  state  subject 
to  a  certain  individual  liabilit}'  for  all  stock  "owned"  by 
them,  a  statute  under  which  a  corporation  was  organized, 
and  which  provided  for  such  personal  liability  of  stock- 
holders in  respect  of  stock  subscribed  by  them,  was  held  to 
impose  the  burden  not  only  in  respect  of  stock  subscribed 
for,  but  also  of  stock  distributed  as  a  stock  dividend,  and 
not  only  upon  an  original  subscriber,  but  also  upon  a  trans- 
feree or  pledgee  of  the  stock  as  collateral  security.'"  Again, 
the  word  "dam  "  in  the  charter  of  a  corporation  was  construed, 
not  in  its  strict  sense  as  a  structure  raised  to  obstruct  the 
flow  of  water,  but  in  its  more  conventional  meaning  as  the 
pond  of  water  itself  created  by  such  obstruction,  since  the 
former  significance,  in  a  provision  allowing  the  company  to 
raise  its  "  dam,"  but  providing  no  compensation  for  injury 
to  others,  would  have  violated  the  constitution.'"     And  in 

in  the  legal  tender  case,  Hepburn  rily   repugnant    to  the  municipal 
V.   Griswold,    8  Wall.    603.      For  cl)artcr,  it  ought  not  to  be  held  to 
the  effect  of  legislation  upon  the  be  so  intended  :  Shaw  v.  Macon,  21 
construction  of  con.vitutional  pro-  Ga.  280. 
visions,  in  order  to  harmonize  the  '^^  Ante,  §  57. 
two,   see   post,  §  528.     It  may  be  '^'^  Eskridge   v.    State,   25    Ala. 
here  added  that'' every  doubl  as  to  30  ;  Banger's  App.,  109  Pa.  St.  79  ; 
constitutionality  of  an  act  is  to  bo  Aullman's  App.,  98  Id.  505  ;  John- 
resolved  in  its  favor:   Com'th   v.  son's  Case,    1   Greeul.    (Me.)  230  ; 
Butler,  99  Pa.  St.  535;  Crowley  v.  Billingsley  v.    State,  14  Md.   369; 
Stale,    11   Oreg.   512;    Smilhie    v.  Bish.,  Wr.  L.,  §89. 
Garlli,  33  Ark.   17;  Alexander  v.  '"  Aultman's   App.,   98  Pa.  St. 
People,  7  Col.  155;  Slack  v.  Jacob,  505. 

8  W.  Va.  612.      Similarly,  unless  ''^    Col  well  v.    May's  Landing, 

what  an  ordinance  says  is  necessa-  etc.,  Co.,  19  N.  J.  Eq.  245. 


^  ISl]  EXCESS  OF  PUWKKS,     ETC.  24.0 

view  of  a  constitutional   provision   that  no  statute  should 
take  effect  until  ninot}^  chiys  after  its  passage,  except  in  case 
of  emergency,   the  plirase   "uftcr  the  passage  of  the  act," 
in  a  statute  directing  certain   matters  ''  within  ninety  days 
after  the  passage  of  tliQ  act,"  was  held  to  mean  within  that 
])eriod  after  the  going  into  effect  of  the  enactment.""'     Fur- 
ther, to  conform  with  a  constitutional  provision  that  "  in  all 
criminal  prosecutions,  the  accused  shall  have  a  right  .  .  to 
have  a  speedy  .  .  trial  .  .  by  a  jury,"  etc.,  it  was  held,  that, 
under  an  act  giving  justices  of  the  peace  the  right  to  try 
without  the  intervention  of  a  jurj',  and  sentence  for  certain 
offences,  the  accused  must  be  held  entitled  to  an  appeal  to  a 
court  where  a  trial  by  jury  might  be  had.""     And  where  an 
act  passed  in  1841  imposed  certain  duties  in  the  collection  of 
revenue  upon  the  state  treasurer  and  made  his  account  and 
certificate  of  amount  due  evidence  against  collectors,  and 
subsequently  the  constitution  imposed  upon  the  Comptroller 
many  of  the    duties    formely  devolving    on  the  Treasurer, 
among  them    that   of  "superintending   and    enforcing   the 
collection  of  all  taxes  and  revenue,  adjusting,  settling  and 
preserving  all  public  accounts,"  etc.,  it  was  held  that    liis 
account    and    certificate    were  evidence    in    actions    against 
collectors  under  the  provisions  of  the  act  of  18-tl.'"     And 
finally,  the  ultimate  right  to  decide  upon  the  claim  of  any 
person  to  sit  as  a  member  of  either  house  of  the  Legislature, 
being  held  to  rest,  under  the  constitution,  with  that  body,  in 
interpreting  an  act  providing  for  the  trial  and  determination 
of  contested  elections  by  the  court  of  common  pleas  of  the 
proper  county,   the  duty  being  imposed  upon  it  to  decide 
which  candidate  had  received  tiie  highest  number  of  votes 
and  was  entitled  to  a  certificate  of  election,  it  was  held  that 
the  power  of  the  court  ended  there,  and  that  it  could  enter 
no  judgment  or  decree  declaring  which  claimant  was  entitled 
to  the  office,  that  right  belonging  to  the  Legislature,  which 
I'emained  at  liberty,  in  the  ultimate  disposition  of  the  matter, 
to  reject  every  finding  of  fact  or  law  made  by  the  court.""] 

159  Harding  v.  People  (Col.),  15  '"  Billingsley  v.  State,  14  Md. 
Pacif.  Rep.  737.  369. 

i«i»    Johnson's  Case,    1    Green).  >«2 /j^  Contested  El'n of  McNeill, 

.(Me.)  230.  11  Pa.  St.  335. 


250  REPUGNANT    PROVISIONS.  [§  182^ 


CHAPTER  VII. 

Presumption  against  Inconsistency.     Repeal  by  Implica- 
tion, 

§  182.  Legislature  Presumed  to  Know  the  Law  and  to  be  Consistent. 

§  183.  Repugnant  Clauses  in  Same  Act. 

§  184.  Exceptions.     Saving  Clause.     Proviso. 

§  18G.  Construction  of  Proviso,  etc. 

^  187.  Repugnant  Acts  passsd  at  Different  Sessions. 

§  188.  Repugnant  Acts  passed  at  Same  Session. 

§  189.  Acts  Passed  Same  Day. 

§  191.  Constitutional  Requisites  as  to  Repeal  Inapplicable  to  Implied. 

Repeal. 
§  192.  Repeal  by  Unconstitutional  Act. 

I  193.  When  Later  Act  does  not  Repeal  Earlier  Repugnant  Act. 
§  194.  Re-enactments. 
§  195.  Amendments, 
§  196.  Amendments  "so  as  to  read,"  etc. 
§  197.  Repugnancy  in  Schedule. 
§  198.  Implied  Repeal  by  Negative  Statutes, 
§  199.  Implied  Negative  in  Affirmative  Statutes. 
§  200.  Statutes  Intended  to  Furnish  Exclusive  Rule. 
§  201.  Revisions  and  Codifications. 
§  203.  Qualifications  of  Foregoing  Rules. 
§  204.  Implied  Repeal  of  Common  Law. 
§  205.  Limits  of  Extent  of  Repeal  by  Implication. 
§  206.   Expressed  Intention  to  Repeal. 
§  207.  Acts  conferring  Conflicting  Rights,  etc. 
<5  208.  Effect  of  Inconvenience  and  Incongruity  between  Acts. 
g  209.   Effect  of  Later  Legislation  as  Showing  Intent  to  Repeal. 

§  182,  Ijegislature  Presumed  to  Know  the  Law  and  to  be  Con« 
sistent, — An  autlior  inu.st  be  supposed  to  be  consistent  M'ith 
liimself ;  and,  therefore,  if  in  one  place  he  has  expressed 
his  mind  clearly,  it  ought  to  be  presumed  that  he  is  still  of 
the  same  miiid  in  another  place,  unless  it  clearly  appears 
that  he  lias  changed  it  {a).     In  this  respect,  the  work  of  the 

.(a)  Puff.  L.  N.  b.  5,  c.  12,  s.  9, 


§  182]  REPUGNANT    FRO  VISIONS.  251 

Legislature  is  treated  in  the  same  manner  as  that  of  any 
other  author.  [As  it  is  the  function  of  the  Legishxture  to 
express  tlie  national  will  by  means  of  statutes,  it  is  essential 
that  the  Legislature  should  know  what  is  the  existing  state 
of  the  law  whenever  any  statute  is  passed,  and  it  is  always 
presumed  that  the  Legislature  possesses  such  knowledge.'] 
The  language  of  every  enactment  must  be  so  construed,  as 
far  as  possible,  as  to  be  consistent  with  everj^  other  wliich  it 
does  not  in  express  terms  modify  or  repeal.  The  law,  there- 
fore, will  not  allow  the  revocation  or  alteration  of  a  statute 
by  construction  when  the  words  may  have  their  proper  oper- 
ation without  it  (a),  [but  requires  the  courts  "  to  uphold 
the  prior  law,  if  the  two  acts  may  well  subsist  together."' 
Yet,  "it  is  not  in  accordance  with  settled  rules  of  construc- 
tion to  ascribe  to  the  law-making  powder  an  intention  to 
establish  conflicting  and  hostile  systems  upon  the  same  sub- 
ject, or  to  leave  in  force  provisions  of  law  by  which  the  later 
will  of  the  Legislature  may  be  thwarted  and  overthrown. 
Such  a  result  would  render  legislation  a  useless  and  idle 
ceremony,  and  subject  the  law  to  the  reproach  of  uncertainty 
and  unintelligibility.'"]  It  is  impossible  to  will  contradic- 
tions ;  'and  if  two  passages  are  irreconcilable,  the  earlier 
stands  impliedly  repealed  by  the  latter  (h).  Leges  posteriores 
priores  contrarias  abrogant.  Ubi  duas  contrarise  leges  sunt, 
semper  antiquse  obrogat  nova  {c).  ["Of  course,  subsequent 
legislation  repeals  previous  inconsistent  legislation,  whether 
it  expressly  says  so  or  not.  In  the  nature  of  things  it  would 
be  so,  for  contradictions  cannot  stand  together."* 

1  Wilb.,  Stat.  L.,  at  pp.  12,  13,  Bowen  v.  Lease,  5  Hill  (N.  Y.)  221; 
citin.y;  R.  v.  Walford,  9  Q.  B.,  at  Canal  Co.  v.  K.  R.  Co.,  4  Gill  and 
p.  635  ;  Jones  v.  Brown,  2  Exch..  J.  (Md.)  1.     Post,  g§  210,  ct  seq. 
at  p.  332.      "Laws  are  presumed         ^  Lyddy  v.    Long  Island   City, 
to  be  passed  with  deliberation,  and  104  N.  Y.  218. 

with  full  knowledge  of  all  existing  (i)  Co.  Litt.  112  :  Shep.  Tonchst. 

ones  on  tbe  subject:"  Sedgw.,  at  p.  88  ;  Grot.  b.  2.  c.  16,  s.  4  :  Sims  v. 

106;  and  to  same  effect  :     Howard  Dough  y,  5  Yes.  243  ;   Cousiantine 

Association's  App.,  70  Pa.  St.  344,  v.  Constantine,  6  Ves.  100  ;  Morral 

346 ;    and    of   the    common    law:  v.  Sutton,  1  Phil.    53:5  ;   Brown  v. 

Jones  V.  Dexter,  8  Fla.  276,  286.  G.   W.   R.  Co.,  9  Q.  B.  D.  753,  per 

(«)  Per  Bridgman,  C.  J.,  in  Wyn  Field.  J. 

V.  Lyn,  Bridg.  Rep.  by  Bannister,  (c)  Livy,  b.  9,  c.  34. 

117.  4  lie  Hickory  Tree  Road,  43  Pa. 

2  Sedgw.,     at    p.    106,     citing:  St.  139,  142. 


252  REPUGNANT    I'ilOVISIONS.  [§§  183,   184 

§  183.   Repugnant  Clauses  in  Same  Act.— [Wlierc,  ill  a  statute, 
there  are  several   clauses   which   present,  as  compared  with 
each  other,  an  irreconcilable  conflict,  the   one   last   in  order 
of  date  or  local  position  must,  in  accordance  with  this  rule, 
prevail,  and  the  others  be  deemed  abrogated   to   the  extent 
of  such  repugnanc}' ;  whether  the  conflicting  clauses  be  sec- 
tions of  the   same   act,    or    merely    portions    of    the    same 
section."     But   this  rule  is  subject  to  some  modifications. 
Thus  it  has   been  said,  that  a  later  clause  which  is  obscure 
and  incoherent  will  not  prevail  over  an  earlier  one  which  is 
clear  and  explicit."     Nor,  as  a  statute  is  to  be  construed  with 
reference  to  other  statutes  in  pari  materia,  as  well  as  by  a  gen- 
eral survey  of  the  whole  context,  and  as  the  various  provis- 
ions are  to  be  made  to  stand  together  if  possible,  will  such 
be   the    result,    where,    upon   a  comparison  of    the  entire 
act  with  others  upon  the  same  subject,  there  appearing  no 
intention  to  change  the  general  scheme  or  system  of  legisla- 
tion upon  the  same,  the  earlier  provision  harmonizes  and  the 
latter  conflicts  with  such  statutes.^      And  it  has  been  seen 
that  a  reading  of  the  pi-ovisionsof  the  whole  statute  together 
may   give  to.  earlier  sections  the  effect  of  restricting  the 
meaning  of  later  ones,  as  well  as  to  the  latter  the  effect  of 
restricting  the  operation  of  the  former."      As  to  repugnant 
portions  of  a  code  it  haa  been  held  that   the  sections  last 
adopted,"  or  portions  transcribed   from   later  statutes,'"  must 
be  deemed  to  repeal  sections  adopted  earlier  or  transcribed 
from  earlier  statutes,  or  so  to  modify  them  as  to  produce  an 
agreement  between  them. 

§   184.    Exceptions.       Saving     Clause.       Proviso. — [It      seems 
proper,  in  this  connection  to  examine  the  effect  of  exceptions, 

»  See  Harington  v.  Rochester,  10  949  ;  Hamiltou  v.  Buxton,  6  Aik. 

"Wend.  (K  Y.)  547  ;   Comm'l  B'k  24. 

V.  Chambers,  IG   Miss.  9  ;  Pucker  «  gtate  v.  Willmms,  8  Ind.   191. 

V.  R.  R.  Co.,  19Pii.  St.  211  ;  Brown  ">  Kans.  Pac.  Ry.  Co.  v.  Wyan- 

V.   Coinm'rs,  21  Id.  37,  42;  Quick  dotte,  16  Kan.  587  ;  ante,  §  44,  note 

V.  White  Water  Tp.,  7  Ind.  570  ;  84. 

Ryan  v.  State,  5  Neb.  27G  ;  Albert-  »  Ante,  §  38  ;  Bish.,  Wr.  L.,  g  04. 

eon  V.  State,  9  Id.  429;   Sams  v.  »  Gibbons  v.  Briltenum,  56  Miss. 

King,  18   Fhi.   557  ;    Branagan   v.  232. 

Dulaney,  8  Col.  408.      And  com-  i»  Exp.  Ray,  45  Ala.  15  ;  O'Neal 

pare,  Gee  v.  Thompson,  11  La.  An.  v.    Robinson,    Id.    526  ;    State  v. 

-657  ;   Peet  v.  Nalle,  30   Id.  P.  II.  Ileidoru,  74  Mo.  410. 


§  184]  PltOVISOS,    ETC. 


253 


saving  clauses  and  provisos.  The  effect  of  an  exceptionj 
which  "  is  part  of  the  enacting  chinse,  and  is  of  i^eneral 
application,""  is  simply  to  restrict,  from  application  to  the 
matters  excepted,  the  general  language  of  the  section  or 
statute,  which,  without  the  exception,  would  have  included 
the  same."  It  is  clear  that  its  effect  must  reach,  and  control 
the  construction  of,  the  general  language  of  the  enactment, 
preceding  or  following,  so  far  as  its  applicability  extends.] 

A  difference,  indeed,  has  been  said  to  exist  in  this  respect 
between  the  effect  of  a  saving  clause  or  exception  and  a  pro- 
viso in  a  statute.  It  is  said  by  Lord  Coke  that  when  the 
enactment  and  the  saving  clause  ai-e  repugnant — as  where  a 
statute  vests  a  manor  in  the  king  saving  the  rights  of  all  per- 
sons, or  vests  in  him  the  manor  of  A.  saving  the  rights  of  A. — 
the  saving  clause  is  to  be  rejected,  because  otherwise  the  enact- 
ment would  have  been  made  in  vain  {a).  One  authority  which 
he  cites  for  this  proposition  is  the  case  of  the  reversal  of 
the  Duke  of  Norfolk's  attainder,  by  an  Act  of  Mary.  That 
Act  declared  that  the  earlier  Statute  of  38  Henry  YIIL, 
which  had  attainted  the  Duke,  was  no  Act,  but  utterly  void, 
providing,  however,  that  this  reversal  should  not  take  from 
the  grantees  of  Henry  YIII.  or  Edward  YI.  any  lands  of 
the  Duke  which  those  kings  had  granted  to  them  ;  and  this 
provision  was  held  inoperative  to  save  the  rights  of  the 
grantees.  But  this  resulted,  it  is  said,  not  because  the  sav- 
ing clause  was  repugnant  to  the  enacting  part,  but  be- 
cause the  latter,  in  declaring  the    attainder  void,  in   effect 

"  Wilb.,  p.  304.  hoc  muxime  operantur  per  refereii- 

12  See  Ibid. ;  Bish.,  Wr.  L.,  §  58;  liaiii,    ufc   iu    eis   inesse,   vidcntur. 

Sedgw.,  p.  50;  Potter's Dwarris,  p.  Thus   a  reservation  in   a  general 

119;  Co.  Litt.  47a  ;  Sliep.  Toucbst.  clause  of  an  act  of  Parliameut,  iu 

78.      It  follows,  that,    iu    aa  ac-  the  words  "  except  as  hereinafter 

tion    based    on     the    statute,    the  mentioued,"  was  held  to  (jontaiu 

pleadings    must  negative    an  ex-  the  exception  made  iu  a  subsequeut 

ception  contained  in  the  enacting  clause,  as  if  incorporated   in  the 

clause,  as  otherwise  it  cannot  be  general    one  ;    so    that    phiintiff's 

seen  that  the  general  language  of  declaration  must  state  the  reserva- 

the  statute  embraces  the  particular  tion  and  exception  :      Vavasour  v. 

case:    see  authorities  just  referred  Ormrod,  6  B.  &  C.  4C0  ;   13  Engl, 

to  and  cases  cited  by  them.      It  is  C.  L.  R.  227,  ;;er  Lord  Tenterden, 

obvious  that  a  proviso  or  saving  (a)  Alton  Wood's   Case,    1    Rep. 

clause  may  be  engrafted  upon  the  47.     See  Yarmouth   v.    Simmons, 

enacting  clause  as  an  exception  by  10  Ch.  D.  518.      [See  also,   Bisb., 

words  of  i-eference.      Verba  relata  Wr.  L.,  §  65.] 


2r4  PROVISOS,   ETC.  [§  184 

established  also  tint  the  lands  of  the  Duke  had  never  vested 
•in  the  Crown ;  that  none,  consequently,  had  ever  passed  to 
the  grantees ;  and  that  there  was  thus  no  interest  to  be  saved 
on  which  the  clause  could  operate  {a).  [So  a  saving  clause 
keeping  in  effect  all  acts  regulating  fees,  etc.,  of  ofticers  was 
held  not  to  apply  to  one  taking  away  fees  entirely."] 

The  illustrations  given  by  Coke  are  cases  of  convej-ance 
of  land  ;  and  the  rule  as  regards  the  construction  of  repug- 
nant passages  in  a  conveyance  by  deed  has  always  been  that 
the  earlier  of  thein  prevails  (i).  But  it  may  be  questioned 
whether  there  is  any  solid  ground  for  this  distinction  between 
a  saving  clause  and  a  proviso  in  a  statute.  ["  There  does 
not  appear'^  to  be  any  real  distinction  between  a  saving  clause 
and  a  proviso.  Each  of  them  is  .  .  .  'something  engrafted 
on  a  preceding  enactment."^  Each  is  'mei'cly  an  exception 
of  a  special  thing  out  of  the  general  things  mentioned'  in 
the  statute."  Each  is  a  limitation  or  exception  to  a  grant 
made  or  authority  conferred,  the  effect  of  which  is  to  declare 
that  the  one  shall  not  operate  or  the  other  be  exercised  un- 
less in  the  ease  provided."  The  office  of  each  is  to  except 
some  particular  case  from  a  general  principle  where  from 
peculiar  circumstances  attending  the  case  there  would  be 
some  hardship  if  it  were  not  excepted  ;'*  to  qualify,  restrain, 
or  otherwise  modify  the  general  language  of  an  enacting 
clause,  or  to  exclude  some  possible  ground  of  misinterpreta- 
tion that  might  exist  if  cases  which  the  Legislature  did  not 
mean  to  include,  were  brought  within  the  statute.""  And 
as  to  a  proviso,  it  has  been  said  that  its  function  is  that  of 
limiting  the  language  of  the  law-maker,  not  of  enlarging  or 


(a)  Plowd.  565  ;  see  Savings  Tn-  "  Cit.  Voorhees  v.  Bank  of  U.  S., 

Btitutiou  V.  Makin,  23  Maine,  370.  10  Pet.  449.  at  p.  471. 

'2  Webb  V.  Baird,  6  Ind.  13.  '^   Cit.  Hnidfkoper's    Lessee   v. 

{h)  Co.  Litt.  113  ;  Shep.  Touclist.  Burnis,  1  Wash,  at  p.  119. 

81, Hard.  94;  Furuivall  v.  Coorabes,  '»  q\i   Waymaa  v.  Southard,  10 

5  M.  &  Gr.  736.  Wheat,  at  p.   30  ;  Minis  v.  U.  S., 

i-*  Quoted  from  Wilb.,  at  p.  301.  15  Pet.  at  p.  445.      And  see  Sav. 

"  Cit.  K.  V.  Taunton.  St.  James,  B'k  v.  U.  S..  19  Wall.  227  ;  Boon 

9  B.  &  C.  at  p.  836,  ;9<3r  Bayley,  J.  v.  Juliet,    2   111.    258;   Ihmsen   v. 

i«Cit.    Halliswell    v.     Corp.    of  Nav.    Co.,    32   Pa.    St.   153,    157; 

Bridgewater,    2    Anderson,    at  p.  Sedgvv.,atp.  49.      But  see  Bish., 

192.  Wr.  L.,  i^§59,  65. 


§  185]  PEovisos,  ETC.  255 

extending  the  act  or  section  of  whieb  it  is  a  part,"  and  its 
effect  that  of  negativing  an  authority  granted  beyond  its 
prescribed  and  clearly  defined  limits/' 

§  185.  [It  would  seem  logically  to  follow  from  this  view, 
tliat,  where  the  proviso  or  saving  clause  exceeds  that  func- 
tion,— viz.,  that  of  creating  an  exception  of  some  special 
thing  from  general  language,  or  excluding  some  possible 
ground  of  misapprehension,  it  must  fail  to  be  of  any  valid- 
ity. Accordingly,  it  has  been  held  that  a  proviso,  as  well 
as  a  saving  clause,  which  is  repugnant  to  the  enacting  clause 
ov  purview"  is  to  be  held  void."  On  the  other  hand  it  is 
maintained,  that]  when  the  proviso  appended  to  the  enact- 
ing part  is  repugnant  to  it-  it  unquestionably  repeals  the 
enacting  part  {a).  The  later  of  two  passages  in  a  statute, 
being  the  expression  of  the  later  intention,  should  prevail 
over  the  earlier ;  as  it  unquestionably  would,  if  it  were 
embodied  in  a  separate  Act."  [But  it  has  been  forcibly 
pointed  out,  by  an  eminent  writer  upon  this  subject,"'^  that 
since  the  several  parts  of  a  statute  are  enacted  simul- 
taneously, and  so  appear  by  the  legislative  records,  there  is, 
in  reason,  no  room  for  the  presumption  upon  which  this 
rule  professes  to  be  based  ;  and  that  the  rule  now  ought  to  be 
that  the  location  of  a  clause  ought  not  to  have  the  impor- 
tance attached  to  it  which  it  formerly  had  ;  so  ihat  an  irrec- 
oncilable conflict  between  two  clauses  "  may  vitiate  the 
whole,  or  the  part  to  which  the  clauses  relate,  or  the  one  or 
the  other  may  give  way  according  to  the  nature  of  the 

20  Jie  Webb,  24  How.  Pr.  (N.  Y.)  Comm.*  463  ;  though  that  principle 
■24:7.  is  held  not  t6  apply  to  acts  con- 

21  Comm'rs  of  Kensington  v.  stitutiug  private  corporations,  any 
Keith,  2  Pa.  St.  218.  ambiguity   in  such  acts  being  rc- 

22  What  comes  within  the  "  pur-  solved  against  the  corporation, 
view  of  a  statute,  means  the  enact-  in  favor  of  the  public  :  Dugan  v. 
ing  part,  or  body,  of  the  same,  as  Bridge  Co.,  supra, 
distinguished  from  the  preamble,  (a)  Atty.-Genl.  v.  Chelsea 
saving  clause  and  proviso  :"  The  Waterworks,  Fitzg.  19.  [Far- 
San  Pedro,  2  Wheat.  133  ;  Sedgw.  mers'  B'k  v.  Hale,  59  N.  Y.  53  ; 
p.  45.  Townseud  v.  Brown,  24  N.  J.  L. 

23  See  Mason  v.   Boom    Co.,   3  80;  Bish.,  Wr.  L.,  §  65.] 

Wall.  Jr.  253;  Dusranv.  Bridge  Co.,         "   ggg  Farmers'    B'k   v.   Hale, 

27  Pa.  St.  303,  309  ;  Exp.  Mayor's      supra. 

Ct.,  4  Clark  (Pa.)  315  ;  1  Kent.         "  See  Bish.,  Wr.  L.,  §  63. 


256  rRovisos,  etc.  [§  18& 

case.''"  And  "  the  true  priiiciple  undoubtedly  is,  that  the 
Bound  interpretation  and  lueanini^  of  a  statute,  on  a  view  of 
the  enacting  clause  and  proviso,  taken  and  construed 
together,  is  to  prevail.  If  the  principal  object  of  the  act 
can  be  accomplished,  and  stand  under  the  restriction  of  the 
proviso,  the  same  is  not  to  be  held  void  for  repugnanc}' ."" 
Nor,  of  course,  if  a  reasonable  operation  can  be  given  to  the 
proviso  consistent  with  the  principal  object  of  the  act  as 
gathered  from  its  purview,  can  there  be  any  question  of  a 
repeal  of  the  latter  by  the  former ;  and  in  construing  stat- 
utes, the  terras  of  a  proviso  may  be  limited  by  the  general 
scope  of  the  enacting  clause,  to  avoid  repugnancy."  Thus, 
a  proviso  may  have  the  effect  of  suspending,  for  a  time,  the 
operation  of  a  statute  and  preserving  in  force  anothei-  which 
would  be  repealed  by  it  immediately  ;  as,  where  an  act, 
declared  to  be  in  effect  from  the  date  of  its  passage, 
changed  the  time  for  holding  a  certain  court  in  a  certain 
district,  but  contained  a  proviso  that  the  first  term  should  be 
held  in  a  particular  county,  which,  under  certain  other  pro- 
visions of  the  act,  could  not  be  done  until  six  months  after 
the  passage  of  the  act,  it  was  held  that  the  previously  exist- 
ing law  was  thereby  preserved  in  force  until  such  term 
could  be  held  in  the  county  designated." 

§  186,  Construction  of  Provisos,  etc.— [From  a  consideration 
of  the  office  and  function  of  a  proviso," it  would  seem  to 
follow  that  it  can  have  no  existence,  separate  and  apart  from 
the  provision  which  it  is  designed  to  limit.  "  If  it  was  not 
intended  to  restrain  the  general  clause,  it  was  a  nullity.'"" 
Upon  the  repeal  of  the  act,  it  falls,  and  does  not  continue  in 
force  as  an  independent  enactment. ''  Where  it  follows  and 
restricts  an  enacting  clause  general  in  its  scope  and  language, 

26  Ibid.  construclion  of  an  act  amending 

"  Folmer's  App.,  87  Pa.  St.  133,  the  cluirter  of  a  city,  but  provid- 

137  ;   1  Kent,  Comm.  *4G3,  note  b.  ing  tluit  certain    sections    should 

And   see  Kenner  v.    Bennett,   21  not.  take  elTecl  until  approved  by 

Ohio  St.  431.  tlie  corporation. 

28  Treas'r  of  Vermont  v.  Clark,  »<>   Ihmsen  v.  Nav.   Co.,  33  Pa.. 

19  Vt.  129.     And  see  Sav.   Inslitu-  St.  153,  157.      But  see  Bisli.,  Wr. 

tion  V.  Makin,  23  Me.  360.  L.,  §  G5. 

'9  Graves  v.  State,  G  Tex.  App.  s'   Church   v.    Stadler,    16    lud.. 

228.     And  see  Clarke  v.  Rochester,  463. 
24  Barb.    (N.  Y.)  446,  for  similar 


§  186]  PEOVISOS,    ETC. 


25T 


it  is  to  bo  strictly  construed  and  limited  to  the  objects  fairly 
within  its  terms/*  Consequently,  an  exception,  from  the 
general  provisions  of  an  act  exempting  property  from  exe- 
cution, of  cases  of  claims  for  wages  of  "  laborers  or  serv- 
ants," would  not  include  those  of  persons  occupying  the 
position  of  book-keeper,  or  the  like.'^  IS'or  would  an  excep- 
tion from  the  benefits  of  the  statute  of  limitations  of  notes, 
bills,  or  other  evidences  of  debt  issued  by  any  bank  or  other 
moneyed  corporation,  cover  notes  of  a  railroad  coujpany 
authorized  by  law  to  be  circulated  as  money.'*  Moreover,  a 
proviso  is  always  to  be  construed  with  reference  to  the 
immediately  preceding  parts  of  the  clause  to  which  it  is 
attached''  and  limits  only  the  passage  to  which  it  is 
appended,  and  not  the  whole  section  or  act,''  or,  at  least, 
only  the  section  with  which  it  is  incorporated."  Thus, 
where  a  section  of  an  act  ended  with  a  proviso  that  no  debtor 
should  be  imprisoned  on  any  process  for  more  than  twelve 
months  for  any  debt  incurred  before  the  filing  of  his  peti- 
tion, in  case  a  final  order  for  protection  from  process  was 
refused,  it  was  held  that  this  did  not  refer  to  all  cases  where 
the  final  order  was  refused,  but  only  to  such  as  were  sug- 
gested in  the  preceding  part  of  the  section  ;'^  and  where  the 
third  section  of  an  act  gave  a  court  stenographer  a  compen- 
sation of  $10  per  day  spent  in  court  taking  notes,  with  a. 
proviso,  that  the  whole  compensation,  in  counties  of  a  certain 
number  of  inhabitants,  should  not  exceed  $1200  per  annum,, 
and  the  fourth  section  required  him  to  write  out  the  notes  in 
long  hand,  when  ordered  by  the  court  to  do  so,  at  a  certain 

32  U.  S.  V.  Dickson,  15  Pet.  141,  And  a  clause  saving  rights  exist- 

165;  Epps  V.  Epps,  17   111.    190;  ino-  at  the    "passage"   of  an  act 

Roberts  v.  Yarboro,  41  Tex.  449.  will  protect  rights  existing  at  the 

But  it   is  saifl,  that,  in  a  criminal  time    of    its    going    into  ^effect: 

statute,   an  exception   or    proviso  Rogers  v.  Vass,  6  Iowa,  405. 

will  be  liberally  construed  in  favor  '^^  Epps  v.  Epps,  supra.   Comp. 

of  the  defendant:    seeBish.,  Wr.  ante,  ^  99. 

L.,  §§  226,  227,  229  ;   aud  he  need  ^'^  Butts  v.  R.  R.  Co.,  63  Miss, 

only  bring  himself  wilhiu  its  letter,  403. 

to  be  entitled  to  its  benctit,  regard-  ^^  Wilb.,  p.  302,  cit.  Exp.   Part- 
less  of  its  intent:  ib.  §  229.       And  ington.  0  Q.  B.  049,  at  p.  653. 
so,    provisos    and    saving  clauses  ^'^   Ibid.;  Spring  v.  Collector,  78 
protecting  acts  done  under  a  stat-  111.  101. 

ute  repeiiled  are  to  be  liberally  con-  ^i  Lehigh  Co.  v.  Meye.,  103  Pa. 

strued  :   Foster  v.  Pritchard,  3  H.  St.  479. 

&  N.  151  ;  40  E.  L.  &  Eq.  R.  446.  ^^  Exp.  Partington,  supra. 

17 


258  PKOvisos,  ETC.  [§  186 

rate  of  compensation,  it  was  held  that  the  effect  of  the 
proviso  was  limited  to  the  compensation  and  services 
required  by  the  tliird  section,  and  that,  if  the  compensation 
for  services  of  the  kind  desii^nated  in  the  fourth  section, 
together  with  the  per  diem  allowance  made  hy  the  third, 
exceeded  $1200,  the  county  was  liable  therefor/"  But  it  is 
snid^"  that  the  mere  fact  "  that  a  proviso  was  printed  as  part 
'of  any  one  section  did  not,  at  the  time  when  statutes  were 
not  divided  into  sections  upon  the  roll,  limit  the  effect  or 
construction  of  the  proviso."'  'The  question  whether  a 
proviso  in  the  whole  or  in  part  relates  to  and  qualifies, 
restrains  or  operates  upon  the  immediately  preceding  pro- 
visions only  of  the  statute,  or  whether  it  must  be  taken  to 
extend  in  the  whole  or  in  part  to  all  the  preceding  matters 
contained  in  the  statute,  must  depend,  I  think,  upon  its 
words  and  import,  and  not  upon  the  division  into  sections 
that  may  be  made  for  convenience  of  reference  in  the  printed 
copies  of  the  statute.'  ""  Remembering  the  slight  impor- 
tance that  is  to  be  attached  to  the  mere  arbitrary  divisions  of 
statutes  by  the  Legislature  itselfV  this  rule,  it  seems,  must 
still,  with  proper  limits  and  caution  as  to  the  application  of 
it,  be  deemed  a  reasonable  one.  Thus,  where  the  lirst  sec- 
tion of  an  act  gave  to  registers,  etc.,  of  the  land  office  the 
rif'-lit  to  charire  certain  fees  for  certain  services :  the  next 
gave  the  right  to  registers,  in  or  out  of  otiice,  to  be  com- 
pensated by  the  United  States  for  similar  past  services  at  the 
same  rate  ;  and  at  the  end  of  this  section  came  a  proviso  that 
no  register  or  receiver  should  receive  for  his  services  during 
every  year  a  greater  compensation  than  the  maximum  then 
allowed  by  law,  it  was  held  that  the  proviso  applied  to  the 
whole  act  and  limited  the  compensation  for  future  services  as 
well  as  past."*  Conversely,  a  proviso  in  the  first  section  of 
an  act,  that  it  should  not  ap])ly  to  estates  in  process  of 
settlement,  was  held  to  apply  ecjually  to  the  second  section 
of  the  act,  rc))ealing  the  existing  law."' 

"5  Lfhiiiii  Co.  V.  Meyer,  supru.  *^  See  ante,  §§  01,  69-70. 

*°  AVilb..  pp.  802-303.  ''•'  U.  S.  v.  B;iL)bit,  1  Bl.ick  S.!. 

•licit.    11.    V.  Tlirelkeld.   4  B.  &  «  Mechanics',  etc.,  B'k's    App., 

All.,  iit  pp.  235.  23(3;    Well.s   v.  Ig-  31  Conn.  63.     See   Foster   v.  Prit- 

gultlen,  3  B.  &  C.  ul,  p.  189.  chard,    supra;     Rogers     v.    Vass, 

"^  '•^  II.  V.  Newark,  3  B.  &C.,  at  p.  siipra. 
71,  per  Holroyd,  .1. 


§§  187,  188] 


IMPLIED    REPEAL. 


259 


§  187.  Repugnant  Acts  passed  at  Diflferent  Sessions. — [ilie 
same  rule,  which,  between  two  irreconcilable  passages  or 
provisions  in  the  same  statute,  gives  validity  to  the  later 
one,  requires,  that,  where  two  statutes  are  irreconcilable  and 
mutually  repugnant,  the  one  later  in  date  or  order  should  be 
held  to  repeal  the  earlier  one." 

§  188.  Repugnant  Acts  passed  at  Same  Session. — [Not  only 
Statutes  passed  at  different  sessions  of  the  Legislature  may 
thus  affect  each  other,  but  a  repeal  by  implication  has  been 
effected  where  two  inconsistent  enactments  have  been  passed 
at  the  same  session  ;"  even  while  the  earlier  act  was  in  its 
progress  to  become  a  law,  but  before  it  had  become  so  by 
the  executive  approval ;"  it  being  said  that  the  parliamentary 
rule,  that  an  act  shall  not  be  repealed  at  the  session  at  which 
it  was  passed,  has  no  reference  to  repeal  by  implication."* 
But   as  has  been  seen,  statutes  enacted  at  the  same  session 


«  See  U.  S.  V.  Irwin,  5  McLean 
178;  Morlot  V.Lawrence,  1  lilutchf., 
€08;  Powers  v.  Barney,  5  Id.  203; 
Union  Iron  Co.  v.  Pierce,  4  Biss. 
327;  U.  S.  V.  Barr,  4  Sawver,  254; 
West  V.  Pine,  4  Wash.  6'Ji;  Ogden 
V.  Witlierspoon,  2  Ilayw.  227; 
Kingsland  v.  Palmer,  52  N.  Y.  81!; 
Lyddv  V.  Long  Island  (/ity,  104 
Id.  218;  Bow(n  v.  Lease,  5  Hill 
{N.  y.)  221;  Rochester  v.  Barnes, 
26  Barb.  (N.  Y.)  657;  People  v. 
New  York,  32  Id.  102;  Excelsior, 
etc.,  Co.  V.  Embury,  67  Id.  2G1; 
Pease  v.  Whitney,  5  Mstes.  880; 
New  London,  etc.,  11.  R.  Co.  v.  R. 
R.  Co..  102  Id.  386;  West  Chicago 
Park  Comm'rs.  v.  Breaock,  18  111. 
App.  559;  Korah  v.  Ottawa,  32111. 
121;  Sullivan  v.  People,  15  Id.  233; 
Moore  v.  Moss,  14 Id.  10(5;  Slate  v. 
Smith,  7  Iowa 244;  Casey  v.  Harned, 
5  Id.  1;  Edgar  v.  Greer,  8  Id.  394; 
Kinney  v.  JNIallory,  3  Ala.  620; 
George  v.  Skeates,  19  Id.  738: 
Commercial  B'k  v.  Chambers.  16 
Miss.  9;  State  v.  Blake,  32  N.  J.  L. 
208;  Jersey  City  v.  R.  R.  Co.,20N. 
J.  Eq.  360;  "Southwark  B'k  v. 
Com'tli,  26  Pa.  St.  446;  Johnston's 
Est.,  33  Pa.  St.  511;  Com'th  v.  R. 
R.  Co.,  53  Id.  62;  People  v.  Grip- 
pen,  20  Cal.  677;  J^xp.  Smith,  40 
Id.  419;    Parrott    V.     Stevens,    37 


Conn.  93;  Tierney  v.  Dodge,  9 
Minn.  106:  Cumberland  v.  Magru- 
der,  34  Md.  381;  Moore  v.  Vance,  1 
Ohio  10;  State  v.  Miskimons,  3 
Ind.  440;  Slate  v.  Youmans,  5  Id. 
280  ;  Peru,  etc.,  R.  R.  Co.  v.  Brad- 
sliaw,  0  Id.  146;  Comm'rs  v.  Potts, 
10  Id.  286;  Dowell  v.  Slate,  58  Id. 
333;  Swinuey  v.  R.  R.  Co.,  59  Id. 
205;  Ham  v.  State,  7  Blackf.  (Ind.) 
314;  McQuilkin  v.  Doe.  8  Id.  581; 
Adams  v.  Ashby,  2  Bibb  (Kv.)  96; 
Maddox  v.  Graham,  2  I\Ietc.  (Ky.) 
56;  Naz.  Lit.,  etc. .  Inst.  v.  Com'th, 
14  B.  Mon.  (Ky.)  266;  Ecklulf  v. 
District  of  Columbia,  4  Mackey 
(1).  C.)572;  i\Iorrison  v.  Baiksdale, 
ll:n-p.  (S.C.)  101;  Byrne  V.  Stewart, 
3  Dcsau.  (S.  C.)  135;  State  v.  Stoll, 
2  Rich.  N.  S.  (S.  C.)  538:  Grant 
Co.  V.  Sels,  5  Ores:.  243;  Hurst  v. 
Hawu,  Id.  275;  Thorpe  v.  School- 
ing, 7  Nev.  15;  Greeley  v.  Jackson- 
ville. 17  Fla.  174;  Branagan  v. 
Dulaney,  8  Col.  408. 

■11  R.  V.  Middlesex  Justices,  2  B. 
&  Ad.  818;  Johnson  v.  Byrd. 
Hempst.  434;  Bourgignou,  etc., 
Ass'n  V.  Com'th.  98  "Pa.  St.  54; 
Atty.-Gen.  v.  Brown,  1  Wis.  513; 
People  V.  Lytic,  1  Idaho,  161. 

4s  South w.  B'k.  V.  Com'th,  26 
Pa.  St.  446.      *• 

4'  Spencer  v.  State,  5  Ind.  41. 


260  IMPLIED    KKPEAL.  [§  189' 

are  to  be  construed,  to  a  certain  extent,  as  one  entire  act,  and 
therefore  it  is  said,  that,  in  order  to  make  a  hiter  enactment 
repeal  a  former  one,  passed  at  the  same  session,  there 
must  be  an  express  dechiration,  or  an  absolute  inconsist- 
ency i""  that  is,  there  is  in  such  a  case  probably  a  stronger 
presumption  against  an  intention  to  repeal,  wliich  is  unex- 
pressed, tlian  in  the  case  of  statutes  passed  at  different 
sessions.  For,  whilst  the  rule  as  to  the  latter  is,  in  general, 
that,  if  possible,  the  construction  must  be  such  as  to  permit 
l)oth  acts  to  stand,  yet  "  it  can  hardly  be  said  that  there  are 
any  absolute  rules  for  determining  the  question  of  implied 
repeal.  The  question,  in  every  case,  is  whether  the  intention 
of  the  later  act,  as  ascertained  by  judicial  construction  upon 
all  the  grounds  applicable  to  it,  is  to  lay  down  a  rule  which 
puts  aside  the  rule  provided  by  the  earlier  act ;  and  it  is  not 
reasonable,  nor  do  we  conceive  it  to  be  the  law,  that  the 
intent  of  the  later  act  is  always  to  be  narrowed  down  so  as, 
if  possible,  to  preserve  the  operation  of  the  earlier  act.  .  . 
We  think  we  are  bound  to  consider  the  special  nature  and 
object  of  [the  particular]  kind  of  legislation  [to  which  the 
statutes  in  question  belong,]  and  whether  [they]  present  a 
case  which  stands  in  the  same  plane  with  the  statutes  ta 
which  the  doctrine  of  enforced  co-operation  has  ordi- 
narily been  applied."" 

§  189.  Acts  passed  Same  Day. —  [Two  inconsistent  acts 
passed  at  precisely  the  same  time  must  necessarily  nullify 
each  other.'^  To  escape  this  result  as  to  statutes  passed  or 
approved  on  the  same  day,  it  is  the  rule  that  the  one  later 
approved  may  repeal  the  earlier  to  the  extent  of  the  re- 
pugnancy between  them  ;"  and  especially  is  such  the  effect 
of  an  act  passed  the  same  day  with  another  inconsistent  one, 
but  later  in  number  as  a  chapter  of  the  laws,  and  being  local 
or  particular  in  its  application,"  and  intended  to  take  effect 

*"  Peyton  v.  ]\Ioseiy,  3  T.  B.  Mon.  Fractions  of  a  day  may  be  noticed 

(Ky.)  77.     See,  as  to  construciion  to  prevent  srreat  niiscluet'  or  incou- 

as  one  act.  §  4li.  veuieace  :  Hampton  v.  Erenzellcr, 

"  Eckloff  v.  District  of  Colum-  2  Biowue  (Pa.)  19.     Post,  §§  ^89, 

bia,   4  iMackey  (D.    C.)  572,    per  seq.,  4'J8. 
James,  J.  '•'^  Mead  v.  Bagnall,  l^)  Wis.  15G; 

**  State  V.  Heidorn,  74  Mo.  410.  and  see  ease  in  next  note.    But  see 

"  Strauss  v.   lleiss,  48  Md.  292.  i?  189. 


§  190]  IMPLIKD    Kia'KAL.  261 

at  a  later  date  than  the  previous  more  general  one."'  But,  of 
course,  the  feame  rule  that  requires  the  harmonization  of  two 
acts  passed  the  same  session,  if  possible,  applies  with  at 
least  equal  foi'ce  to  acts  passed  on  the  same  day/'  Thus, 
■where  an  act  provided  that  deeds  should  be  registered  in  the 
probate  registry  for  the  county  or  city  where  the  property 
M-as  situated,  and  another,  passed  the  same  day,  that  deeds 
might  be  registered  in  the  county  registry,  it  was  held  that 
the  two  acts  should  be  construed  together,  with  the  eifect  of 
allowing  deeds  relating  to  lands  in  a  city  to  be  registered  in 
a  county  registry."  And  so  where  two  acts  upon  the  same  _ 
subject  were  passed  on  the  same  day,  the  one  to  go  into  effect 
immediately,  the  other,  apparently  dispensing  with  most  of 
the  matters  provided  for  in  the  first,  to  go  into  effect  at  a 
future  day,  it  was  held  that  full  effect  could  be  given  to  both 
acts  without  imputing  inconsistency  to  the  Legislature.^^ 

§  190.  [As  to  the  question  which  of  two  acts  is  to  be 
regarded  as  the  later,  it  is  said  that  the  date  of  approval, 
not  that  of  publication,  is  controlling  in  the  determina- 
tion of  the  Legislative  intent,  so  far  as  the  same  depends 
upon  priority  of  action  ;^*  so  that  the  mere  fact  that  a  statute, 
in  the  authorized  publication  of  laws,  precedes  another 
of  a  latei-,  or  perhaps  of  the  same  date,  was  held  itieffec- 
tual  to  enable  the  latter  to  modify  or  supersede  the 
former/"  But,  as  between  the  date  of  passage  and  that  of 
approval,  it  was  held  in  Pennsylvania,  that  the  fact  that  the 
governor's  signature  was  appended  to  an  act  which  was 
repealed,  in  part,  by  another  passed  and  signed  while  the  first 
was  before  him,  would  not,  of  course,  revive  the  repealed 
clause,  the  repeal  being,  though  only  implied  and  not  express, 
unmistakably  intended."  '•  He  had  no  more  power  to  reinstate 
the  abolished  section,  than  he  had  to  make  a  new  law  with- 
out the  sanction  of  the  Legislature.'"""  On  the  other  hand,  in 

55  Metrop.  B'd  of  Health  v.  «»  Thomas  v.  Collins,  58  Mich. 
Sclimades,  3  Daly  (N.Y.)  283.  See,      64. 

however,  upon  this  subject,  so  far  "  Southwark  B'k  v.  Com'th,  26 

as  it  depends  upon  the  commence-  Pa.  St.  446  ;   such  intention  being 

ment  of  statutes,  post,  i^g  190,  500.  shown  from  the  legislative  jour- 

56  See  ante,  §  45.  nals. 

"  Beale  v.  Hale,  4  How.  37.  «'^   Ibid.,   at  p.  451,   per  Lewis, 

68  Fouke  V.  Fleming,  13  Md.  393.      C.  J. 
5»  Mead  v.  Bagnall,  15  Wis.  156. 


262  IMl'LIKD    REPEAL.  [§§  191,  192 

Kansas,  where  a  code  provided  that  it  sliould  go  into 
effect  on  June  1,  and  a  subsequent  act,  expressly  amenda- 
tory of  the  code,  declared  tliat  the  same  should  go  into 
eiFect  from  and  after  the  date  of  the  passage  of  the 
amendatory  act,  the  latter  being  approved  on  February  10, 
and  the  code  on  February  11,  it  was  held  that  the  act 
last  approved  must  control,  i.  e.,  that  the  code  went  into 
effect  on  June  1."^ 

§  im.  Constitutional  Requisites  as  to  Repeal  Inapplicable  to 
Implied  Repeal. — [It  may  be  here  observed  that  the  doctrine 
of  implied  repeal  is  not  destroyed  by  constitutional  provisions 
directing  certain  observances  by  the  Legislature  in  repealing 
enactments,  e.  (/.,  that  repealing  acts  shall  recite  the  title  or 
substance  of  the  act  intended  to  be  repealed  ;"  or  restricting 
acts  to  a  single  subject  to  be  expressed  in  the  title/^  Of 
course,  where  an  act  is  passed  inconsistent  with  a  former 
statute,  but  containing  no  express  repeal  of  the  same,  in 
accordance  with  constitutional  requirements  of  form,  and  a 
few  days  later  another  is  adopted  removing  the  conflict 
between  the  two,  the  act  which  would  otherwise  have 
operated  as  a  repealing  act  is  unobjectionable  on  the  score  of 
constitutional  defect  and  must  be  held  valid.*" 

§  192.  Repeal  by  Unconstitutional  Acts. — [On  the  other  hand,, 
it  would  seem  that  no  repeal  by  implication  can  result  from 
a  provision  in  a  subsequent  statute  when  that  provision  is 

^^  Elliott  V.    Lochnane,    1  Kan.  the  text  is  tacitly  acted  upon  in  an 

136.  uncountable  number  of  deci.sions. 

^■*  Home    Ins.    Co.    v.    Taxing  recognizing  implied  repeals  under 

Distr.,  4  Lea  (Tcnn.)  644  ;    Ballen-  similar   constitutional    provisions, 

tine  v.  Pulaski,  15  Id.  633;  Poe  v.  But  it  may   be  too  broad  to  say 

State,    85   Tenn.    495;   and   see   to  that  such  jn'ovisions  have  no  effect 

same  effect  :    Geisen  v.  Ileideiicb,  wiiatevcr  upon  tiie  doctrine  of  im- 

104   111.   537;    Swartwout    v.    Air  plied  repeal,  or  its  application.     It 

Li  tie   Co.,  24  Id.  389;   Lehman  v:  may  very  reasonably  be  supposed 

JMcBride,  15  Ohio  St.  573;  Spencer  that   the   exercise   of    tlic     power 

V.  State,  5   Ind.    41;   Branham   v.  of  express  repeal  being  subjected 

Lange,    16    Id.  497;   Anderson   v.  to  such  restrictions  in  the  interest 

Cdm'lh,  18  Gratt.  (Va.)  295;   and  of  certainty,  an  intention  to  cxer- 

see  al.so  Falconer  v.  Robinson,  46  cise  the  power  of  imjilicd  repeal 

Ala.     340.      Compare,      however,  should  not  be  presumed,  except  in 

Greeley  v.   Jacksonville,    17   Fla.  tin;  clearest  cases. 
174.      The  same  is  true  of  statutes  "^  Geisen  v.  Ileiderich,  supra, 

acting,  impliedly,  as  amendments  ''^  Morrell     v.     Fickle,     3    Lea. 

of  others:    People  v.  JNIahaney,  13  (Tenn.)  79. 
Mich.  481.     The  doctrine  stated  in 


§§  193,  194]  IMPLIED    KEPEAL.  263 

itself  devoid  of  constitutional  force.  Thus,  where  the  con- 
stitution requires  the  subject  of  an  enactment  to  be  indicated 
in  its  title,  it  was  lield  that  an  act  was  not  to  be  deemed 
repealed  by  a  later  repugnant  one,  whose  subject-matter, 
however,  on  the  point  of  such  inconsistency,  was  germane 
to  iiutliing  in  its  tith^" 

§  193.  When  Later  Act  does  not  Repeal  Earlier  Repugnant  Act. 
—[The  rule  that  a  later  act  repeals,  by  imi)lication,  that 
which  is  inconsistent  with  it  in  an  earlier  one  is,  however, 
but  the  expression  of  an  intention  presumed  to  be  entertained 
by  the  Legislature  in  nuiking  the  law.  As  such,  it  is  of  course 
negatived  and  rendered  inoperative  by  the  expression  of  a 
contrary  intention  in  the  later  statute.'^  And  if,  in  passing 
an  act,  the  Legislature  declares  that  another  earlier  act  is  "  to 
have  the  same  effect  as  if  passed  after  this  Act,"— a  provis- 
ion, which,  though  somewhat  anomalous,  does  not  transcend 
the  legislative  power,'' — the  position  of  the  two  acts,  for  the 
purposes  of  construction,  as  to  the  relative  effect  of  one  upon 
repugnant  provisions  in  the  other,  is  reversed  ;  i.  e.,  wher- 
ever the  two  are  in  conflict,  the  later  is  subordinate  to  the 
earlier.'"] 

§  194.  Re-enactments. — It  has  been  held  that  where  a 
statute  merely  re-enacts  the  provision  of  an  earlier  one,  it  is 
to  be  read  as  part  of  the  earlier  statute,  and  not  of  the  re- 
s' Miller  v.  Edwards,  8  Col.  528.  sistent  therewith  repealed  must,  of 
Similarly,  it  has  been  said  that  necessity,  leave  those  acts  unaf- 
a  repeal  of  all  laws  inconsistent  fected:  Tims  v.  State,  26  Ala.  165; 
with  a  sialule  docs  not  affect  laws  State  v.  Lacrosse,  11  Wis.^  51; 
inconsistent  with  such  parts  there-  Sliepardsou  v.  R.  R.  Co.,  6  Id. 
of  as  are  themselves  unconstitu-  605;  unless  it  is  apparent  that  the 
tioual  and  void:  Devoy  v.  New  Legislature  intended  to  repeal  the 
York,  35  Barb.  (N.  Y.)  264;  Har-  old  law  at  all  events:  Childs  v. 
beck  V.  New  York,  10  Bosw.  Shower,  18  Iowa,  201.  Similarly 
(N.  Y".)  366;  Sullivan  v.  Adams,  3  it  has  been  held,  that,  where  one 
Gray  (Mnss.)  470.  It  has,  indeed,  section  of  an  unconstitutional  act 
been  held  that  a  repealing  clause  repealed  all  existing  statutes  ou 
in  a  statute  may  be  valid,  though  the  subject,  they  were  left  unim- 
every  other  portion  of  it  be  uncou-  paired  thereby:  People  v.  Tip- 
stitulioual:  Ely  v.  Thompson,  3  haiiie,  3  Park.  Cr.  (N.  Y^)  241. 
A.  R.  .Alarsh.  (Ky.)  70;  and  see  Comp.  Bish.,  Wr.  L.,  §g  34,  152, 
Harvey  v.  Virginia,  20  Fed.  Rep.  «»  gee  People  v.  Kelly,  7  Robt. 
411.  But,  ex  coutrario,  it  is  asserted.  (N.  Y'.)  592. 

that,  where  an  act,  in  its  substan-  ^^  People  v.  Jaehne,  103  N.  Y  .^ 

tial  provisions,  is  unconstitutional,  182.     And  see  ante.  §  183. 

a  clause  declaring  all  acts  incon-  '»  Ibid.    See  further,  post,  §  222. 


264  iMPMF.n  r.Ki'KAL.  [§  195 

(Miactiiig  oue,  if  it  is  in  conflict  with  another  passed  after  the 
first,  but  before  the  last  Act;  and  therefore  (h)cs  not  repeal 
by  implication  the  intermediate  one  {a).  [And  the  re-enact- 
nient,  at  the  same  session  of  the  Legislature,  of  certain 
sections  of  one  act  in  a  subsequent  one,  providinj;,  except  in 
the  re-enacted  sections,  a  different  scheme  from  the  first,  was 
held  not  to  work  a  repeal,  by  implication,  of  those  sections 
in  the  first  act ;  and  a  provision  in  the  second  act  suspending 
the  operation  of  those  sections  in  it,  did  not  suspend  the 
operation  of  the  same  sections  in  the  first  act,  according  to 
which  they  were  to  take  effect  at  once." 

§  195.  Amendments. — [An  amendment  of  a  statute  may  or 
may  not  operate  as  an  implied  repeal  of  the  original  law. 
If  it  does  not  change  the  same,  but  merely  adds  something 
to  it,  it  is  not,  in  general,  a  repeal  thereof."  Where,  on  the 
other  hand,  the  amendment  changes  the  old  law  in  its 
substantial  provisions,  it  must,  by  necessary  implication,  re- 
peal it  to  the  extent  to  which  the  new  is  in  conflict  with, 
and  repugnant  to,  the  old  ;"  but  not  beyond.  Thus,  where, 
under  a  statute  fixing  the  limit  of  grand  larceny  at  $5  or 
U))wards,  an  offence  was  committed  consisting  in  the  larceny 
of  $23,  and  before  trial  and  conviction,  an  amendatory  act 
was  passed  changing  the  limit  from  $5  to  $15  as  the 
minimum  to  constitute  grand  larceny,  it  was  held  that  there 
was  no  repeal  of  the  earlier  act  except  as  to  the  limit, — a 
change  which  did  not  affect  the  case  in  question,  since  tliere 
never  was  a  time  when  the  larceny  of  an  amount  exceeding 
$15  did  not  constitute  grand  larceny  under  the  law/*  If, 
however,  the  amendatory  statute  covers  the  entire  subject 
matter  of  the  old  law,  and  is  inconsistent  with  its  provisions, 
it  must  be  held  to  repeal  the  same  by  implication."  And 
even  if  it  is  not  repugnant  in  express  terms, yet,  if  ifc  covers 

{a)  Moiissc    V.    Royal     liritisli  37  IMich.  217.      And  sec  Mcllobert 

Bank,  1  C.  B.  N.    S.  67,  20  L.  J.  v.  Washburue,  10  Minn.  2;J,  infra. 
G3;  73tf?-  Willes,  J.,  citing  Wallace  '•'State   v.    Miller,    58   Intl.  399, 

V.    Biackwell,   3  Drew.   538;    and  and  accordingly  the  order  oT   the 

sec  R.  V.  Dove,  3  B.  &  A.  596.  lower  conrt   quasiiiiig    the  indict- 

■"  Powers  V.  Shepard,  48  N.  Y.  nient,  on  tiie  ground  of  a  reix'al  of 

540.     See  ])ost,  §  490.  the  older  act,  was  held  to  be  error. 

'-'  Longlois  V.  Longlois,  48  Ind.  "  Pana  v.  Bowler,  107  U.  S.  539; 

60.  Longlois  v.  Longlois,  48  Ind.  GO. 

'■  Ibid.  :   Breitung  v.    Lindauer, 


^  196]  IMPLIED    REPEAL. 


265 


the  whole  subject  of  the  amended  act,  and  contains  new  pro- 
visions showing  it  to  be  intended  as  a  substitute  for  the 
same,  it  will  operate  as  a  repeal  of  it/"  But  an  amenda- 
tory statute  should  not  receive  a  forced  construction  so  as  to 
make  it  a  repealing  statute."  And  an  unconstitutional 
amendment  cannot  liave  the  effect  of  repealing,  by  mere 
implication,  the  original  act.''^ 

§  196.  Amendments"  so  as  to  read,"  etc. — [Where  an  act  or 
portion  of  an  act  is  amended  "  so  as  to  read  "  in  a  prescribed 
way,  it  has  been  said  that  the  section  amended  is  entirely 
repealed  and  obliterated  thereby."  It  is  perfectly  clear, 
that,  as  to  all  matters  contained  in  the  original  enactment, 
and  not  incorporated  in  the  amendment,  the  latter  must  be 
held  to  have  the  effect  of  a  repeal.'"  But  as  to  the  remain- 
der, ^.  e.,  that,  which,  in  the  amendatory  act,  is  declared 
thereafter  to  be  its  form  and  effect,  it  would  seem  that  even 
an  amendment  in  the  phrase  indicated,  does  not  have  the 
effect  of  a  simultaneous  repeal  and  re-enactment,"*  but  that  of 
a  merger  of  the  original  statute,  in  the  new,  leaving  the  old 
statute  no  vitality  distinct  from  the  new,  and  of  force  only 
as  to  past  transactions,''^  as  to  which  it  must  be  deemed  to  be 
continued  in  force  as  from  the  time  of  its  first  enactment,*' 
wliilst,  as  to  new  transactions,  its  whole  force  rests  upon  the 
amendatory  statute."  So  complete,  however,  is  the  merger 
of  an  act  in  such  an  amendment,  that  the  repeal  of  the 
amending  act  is  said  not  to  be  capable  of  reviving  the 
original  law,  but  to  annihilate  the  same  as  effectually  as  if  it 

'SBreitungv.  Liuclauer,37  Mich.  127;  Mosby  v.  Ins.  Co.,  31  Gratt. 

217;  and  see'Longlois  v.  Louglois,  (Va.)  629;  and  see  Bisb.,  AVr.  L.,  § 

supra.                                           "  15  2a.    See  Addenda. 

"  Lucas  Co.  V.  Ry.  Co.,  67  Iowa  ^i  Burwell   v.   Tullis,    12  Minn. 

541.  572. 

''s  Exp.  Davis,  21  Fed.  Rep.  396.  «-  People  v.  Supervisors,    67  N. 

See  also  State  v.  Alexander,  9  Ind.  Y.  109. 

337.  But  comp.  Billings  V.  Harvey,  ^^  ]\[oore  v.  ]\Iausert,    49  N.  Y. 

6  Cal.  381.  332;  Ely  v.  Holton,  15  N.  Y.  595. 

"  State  V.  Andrews,  20  Tex.  230;  ^-^  People   v.  Supervisors,  supra; 

and  see  Wilkinson  v.   Keller,  59  Ely  v.  Holton,  supra.     So  that,  of 

Ala.  300;  Blakemore  v.  Dolan,  50  course,  the  amendment  could  have 

Ind.  194.  no  retroactive  efficacy:  Ibid.;Mc- 

80  iMoore  v.    Mausert,   49  N.  Y.  Geeban  v.  Burke,  37  La.  An.  156; 

332;  People  v.  Supervisors,  67  Id.  Bisb.,  V^r.  L.,t;  152a.    ButseeBur- 

109;   State   v.   Inaersoll,    17   Wis.  well  v.  Tullis,  12  Miun.  572.     And 

■631;  Gooduo  v.  Oshkosb,  31  Wis.  see  post,  §  294. 


266  IMPLIED    REPEAL.  [§§  197-199 

also  were  expressly  repealed ;"  so  complete,  that  the  word 
"hereafter"  used  in  such  an  aioeiidinent  refers  to  the  date 
of  the  passauje  of  the  orii^inal  act ;""  and  that  an  act  re|)ealing 
"section  G"  of  a  certain  act,  which  had  been  amended  so 
that  a  new  section  stood  in  the  place  of  the  orii^inal  section 
0,  repealed  section  6  as  amended."  A  provision  enacted 
"  in  lien  "  of  another  was  held  to  repeal  the  same.**] 

§  197.  Repugnancy   in    Schedule Where   a   passage   in   a 

schednle  appended  to  a  statute  was  repugnant  to  one  in  the 
body  of  the  statute,  the  latter  was  held  to  prevail  {a). 

§  19S.  Implied  Repeal  by  Negative  Statutes. — When  the  later 
of  the  two  general  enactments  is  couched  in  negative  terms, 
it  is  difficult  to  avoid  the  inference  that  the  earlier  one  is 
impliedly  repealed  by  it.  For  instance,  if  a  general  Act 
exejnpts  from  licensing  regulations  the  sale  of  a  certain  kind 
of  beer,  and  a  subsequent  one  enacts  that  "  no  beer  "  shall 
be  sold  without  a  license,  it  would  obviously  be  impossible 
to  save  the  former  from  the  repeal  implied  in  the  latter  (b). 
[And  where  a  statute  provides,  that,  thereafter,  "  no  corpo- 
ration "  should  interpose  the  defence  of  usury,  it  is  clear 
that  the  effect  of  such  an  enactment  is  a  repeal  of  the  usury 
laws  as  to  corporations.*'] 

§  199.  Implied  Negative  in  Affirmative  Statutes. — But  even 
when  the  later  statute  is  in  the  affirmative,  it  is  often  found 
to  involve  that  negative  which  makes  it  fatal  to  the  earlier 

"  People  V.  Supervisors,  supra;  ®'  Greer  v.  State,  23  Tex.  588.  8. 

Goodno    V.  Oshlvosh,  31  Wis.  127;  P.  State    v.    Ranson.    73    Mo.  88;, 

and  see  post,  ^§  475-477.  Kamerick  v.   Castleman,    21   Mo. 

8*  Moore  v.  Mausert,  supra.    See  App.  587. 

to  same  effect  as  to  "hereinbefore  **»  Gossler  v.    Goodrich,   3  Clif. 

provided":  McKibben  v.  Lester,  9  71;    Steamb.  Co.  v.  Collector,    18 

Ohio  St.  G27.     But  see  People  v.  Wall.  478. 

Wayne  Giro.  .Judge.  37  Mich.  287,  {n)  11.  v.  Baines,  12  A.  &  E.  237; 

that   "heretofore"   in   an   amend-  Allen  v.  Flicker.  10  A.  &  PI  640, 

ment  adopted  22  years  after  the  per  Patte.'^on,  J.;  R.  v.  Russell,  13 

passage  of  the  original  act-,  provid-  Q.  B.    237  ;  Dean  v.  Green,  L.  R. 

ing  tliat  actions  on  judgments  Jiere-  8  P.  D.89,  per  Lord  Penzance,    See 

<i9/'(9J-e  rendered  should  be  barred  in  Clarke  v.  Grant,  8  Ex.  252.  22  C. 

10  years  after  entry  thereof,  means  J.  07.     [See  ante,  §  71.J 

before   the  passage  of  the  amend-  (6)  Read  v.  Stor}^  30  L.  J.  M.  C. 

ment,  it  being   aUsurd   to   confine  110,  G  H.  &  N.  423;  remedied  by 

the    iirovision   to  judgments  ren-  24  &  25  Vict.  c.  21,  s.  3. 

dered  before  the  passage  of  the  orig-  **8  Balkston  Spa    B'k  v.  Marino 

inal  act.  B'k,  10  Wis.  120. 


§  199]  IMPLIED  REPEAL.  267 

enactment  (a).  [Thus,  if  a  subsequent  statute  requires  the 
same  and  more  than  a  former  one  prescribed,  tliis  is  neces- 
sarily a  repeal  of  the  earlier  act,  so  far  as  the  later  act  ren- 
ders more  necessary  than  the  earlier  one  prescribed."  And 
vice  versa,]  if  an  Act  requires  that  a  juror  shall  have  twenty 
pounds  a  year,  and  a  new  one  enacts  that  he  shall  have  twentj' 
marks,  the  latter  necessarily  implies,  on  pain  of  being  itself 
inoperative,  that  the  earlier  qualification  shall  not  be  neces- 
sary, and  thus  repeals  the  first  Act  (5).  [A  grant  of  author- 
ity by  the  Legislature  to  county  commissioners  to  create  a 
debt  and  provide  for  the  payment  of  interest  thereon,  was 
held  to  be  an  enlargement  of  their  power  to  assess  taxes  to 
meet  the  demand,  and  as  implying  a  repeal  of  any  conflict- 
ing statutory  limitation.*']  Where  an  act  of  Charles  II. 
enabled  two  justices  of  the  peace,  "  whereof  one  to  be  of  the 
quorum,"  to  remove  any  person  likely  to  be  chargeable  to 
the  parish  in  which  he  comes  to  inhabit ;  and  another,  after- 
reciting  this  provision,  repealed  it,  and  enacted  that  no  per- 
son should  be  removable  until  he  became  chargeable,  in 
which  case  "  two  justices  of  the  peace  "  were  empowered  to 
remove  him  ;  it  was  held  that  the  later  Act  dispensed  with 
the  qualification  of  being  of  the  quorum  (c).  The  provision 
of  the  43  Eliz.,  which  gave  an  appeal  without  any  limits  as 
to  time  against  overseers'  accounts,  was  impliedly  repealed 
by  a  subsequent  Act,  which  gave  power  to  appeal  to  the- 
next  Quarter  Sessions  {d).  [So,  a  statute  giving  a  right  of 
appeal  generally  is  repealed  by  one  giving  a  right  of  appeal 
in  cases  involving  more  than  $5."]  The  Nuisances  Kemoval 
Act  of  1848,  in  providing  that  the  costs  of  obtaining  and 
executing  an  order  of  justice  under  the  Act  against  an  owner 
of  premises  should  be  recoverable  in  the  County  Court, 
impliedly  repealed,  as  regards  such  cases,  the  enactment  of 
the  County  Court  Act,  that  those  Courts  should  not  take 

(a)  Bac.    xYb.  Stat.   D.  ;   Foster's     Pa.  St.  348. 

Case.  5  Rep.  59.     See  Lord  Black-  (c)  13  &  14  Car.  2,  c.  13,  and  35 

burn's    iud£?ment    in    Garnett    v.  Geo.  3,  c.  101  ;  R.  v.  Lianf;iaD,  4 

Bradley,  3  App.  966.  B.  &  S.  249,  33  L.  J.  M.  C.  225, 

so  Gorham  v.  Luckett,  6  B.  Mon.  dissentiente  Cockburn,  C.  J. 

(Ky.)  146.  id)  43  Eliz.  c.  2,  s.  6.  17  Geo.  3, 

(b)  Jen'k.    Cent.    3,    73,    1     Bl.  c.  38,  s.  4  ;  K.  v.  Worcestershire,  5.- 
Comm.  89.  Man.  &  S.  457. 

91  Com'th  V.  Commissioners,  40         '■  Curtis  v.  Gill,  34  Conn.  49. 


-268  IMPLIED    KKPKAL.  [§  200 

cognizance  of  cases  where  title  to  real  property  was  in  ques- 
tion ;  for  it  would  have  been  inoperative  if  the  Court  could 
not  decide  the  question  of  ownership  {a).  [An  act  giving  a 
court  jurisdiction  in  general  terms,  and  without  restrictiuTi 
as  to  the  amount  claimed,  over  a  certain  kind  of  cases,  was 
ludd  to  repeal,  i)}'  implication,  an  earlier  act  under  wliic-h  its 
jurisdiction  could  be  exercised  only  over  a  peculiar  kind  of 
such  cases."]  The  judicature  Act  of  1873  repealing  in  gen- 
eral words  all  statutes  inconsistent  with  it,  and  enacting  that 
the  costs  of  all  proceedings  in  the  High  Court  shall  be  in  the 
discretion  of  the  Court,  and  that  where  an  action  is  tried  by 
a  jury,  the  costs  shall  follow  the  event  unless  the  Judge,  at 
the  trial,  or  the  Court  otherwise  orders,  was  held  to  repeal 
the  Act  of  James  I.,  which  deprived  a  successful  plaintiff  of 
•costs  in  an  action  of  slander  when  he  did  not  recover  as 
much  as  forty  shillings  damages  (li).  Where  an  Act  nuide 
it  actioiud)le  to  sell  a  pirated  copy  of  a  work  with  knowledge 
that  it  was  pirated,  and  a  subsequent  Act  contained  a  simi- 
lar provision,  but  without  any  mention  of  guilty  knowledge, 
it  was  held  that  the  earlier  Act  was  so  far  abrogated  that  an 
action  was  maintainable  for  a  sale  made  in  ignorance  of  the 
])iracy  {a).  Where  an  Act  required  that  a  consent  should 
be  given  in  writing  attested  by  two  witnesses,  and  a  subse- 
quent Act  made  the  consent  valid  if  in  writing,  but  made 
no  mention  of  witnesses,  this  silence  was  held  to  repeal  by 
implication  the  provision  which  required  them  (c).  Where 
an  Act  exempted  from  impressment  all  seamen  employed 
in  the  Greenland  fisheries,  and  a  later  one  exempted  seamen 
embarked  for  those  lisheries  whose  names  were  registered 
iuid  who  gave  security,  it  was  held  that  the  earlier  was 
repealed  pro  tanto  by  the  later  Act  {d). 

§  200.    Statutes    Intended  to    Furnish    Exclusive   Rule.  —  [The 
"implied  negative"  referred  to  in  the  preceding  section  is 

{(i)  11  &  12  Vict.  c.  VZ'6,  s.  3,  9  &  C.  B.  X.  S.  G65. 

10  Vict.  c.  95,  s.  58;  11.  v.  Harden,  (c)  Cumbcrlaud   v.   Copeland,    1 

3  E.  &  B.  288,  22  L.  J.  299.  H.  &  C.  194,  13  L.  J.  Ex.  353 ;  per 

"Farley   v.    DeWaU'es,  2   Daly  Jcrvis,  C.  J.,  in  Jeffreys  v.  Booscy, 

(N.  Y.)  192.  4  11.  L.  943  ;  and  ;w  Lord  Wens- 

{b)  GariH'tt   V.    Bradley,  3   App.  leydale    in    Kyle     v.    Jeffreys,    3 

944.     See  also  pf?"  Jesscl,  M.  B.,  in  Macq.  Gil,  31  L.  J.  Ex.  355n.     See 

Mersey  Docks  v.  Lucas.  51  L.  J.  I'urihcr,  post.,  i^  384. 

Q.  B.llO  ;  Gardner  v.  VVhitford,  4  {d)  E.xp.   Carrutliers,  9  East,  44. 


§  200]  IMPLIED   REPEAL.  269' 

to  be  found,  indeed,  wherever  the  later  statute  clearly  intends 
to  prescribe  the  only  rule  which  is  to  be  jiccepted  as  govern- 
ing the  case  provided  for  ;  and  where  it  does  so,  it  repeals 
the  earlier  law  by  implication.®*  Thus,  where  »i!ie  of  two- 
acts  for  the  assessment  and  collection  of  a  tax  required  notice 
of  the  election  to  vote  the  tax  to  be  posted  ten  days  and 
published  two  weeks,  and  limited  the  tax  to  $1.50  on  every 
SBIOO  ;  and  the  other  required  notice  to  be  posted  twenty  days 
and  published  three'  weeks,  and  limited  the  rate  of  taxation 
to  70  cents  on  every  $100,  it  was  held  that  the  latter  act 
must  be  deemed  to  repeal  the  former  by  implication.®']  If 
the  co-existence  of  two  sets  of  provisions  would  be  destruc- 
tive of  the  object  for  which  the  later  act  was  passed,  the 
earlier  would  be  repealed  by  the  later.  Thus,  when  a  local 
act- empowered  one  body  to  name  the  streets  and  to  number 
the  houses  in  a  town,  and  another  local  act  gave  the  same 
power  to  another  body,  the  earlier  would  be  superseded  by 
the  later  Act ;  for,  to  leave  the  power  with  both,  would  be 
to  defeat  the  object  of  the  Legislature  {a).  [So,  where  a 
general  act  relating  to  the  establishment,  management,  etc., 
of  boroughs,  provided  a  method  for  the  opening  of  streets 
therein  by  the  town  councils,  it  was  held  that  thereby  the 
general  road  law,  prescribing  a  procedure  for  the  laying  out,, 
etc.,  of  highways  by  the  courts  of  Quarter  Sessions,  was  im- 
pliedly repealed  as  to  boroughs  falling  under  the  first-men- 
tioned act,  it  being  impossible  "  that  two  independent  and 
conflicting  systems  were  designed  by  the  legislature  to  apply 
to  the  streets  of  a  single  borough."**  And  where  an  act, 
repealing  all  provisions  of  laws  repugnant  to  and  inconsistent 
with  it,  directed  that  the  sheriffs  of  certain  counties  should 

9^  See  Daviess  v.  Fairbairn,  3  31  L.  J.  C.  P.  223,  12  C.  B.  2*^.  S.. 
How.  636  ;  D.  &  L.  Plank  Road  v.  161.  See  Cortis  v.  Kent,  Water- 
Allen,  16  Barb.  (N.  Y.)  15  ;  State  v.  works.  7  B.  &  C.  314  ;  R.  v.  Mid- 
Jersey  City,  40  N.  J.  L.  257  ;  Sch.  dlesex,  2  B.  &  Ad.  818  ;  Bates  v. 
Distr.  V.  Wiiitebead,  13  N.  J.  Eq.  Winstanley,  4  M.  &  S.  429.  [See 
290;  Ris^gsv.  Brewer,  64  xVla.  282;  New  Loudon,  etc.,  R.  R.  Co.  v. 
Swann  ""v.  Buck,  40  Miss.  268;  Boston,  etc.,  R.  R.  Co.,  102  Mass. 
Sacramento  v.  Bird,  15  Cal.  294;  386.] 
State  v.  Conkling,  19  Id.  501.  ■^^  Re     Alley     in   Kiitztown,    2 

96  People   V.  Burt,  43   Cal.  561;  Woodw.    (Pa.)  373.      And  see,   to 

See  also  Evansville  v.  Bayard,  39  similar  eifect :  Re  Spring  Street,, 

Ind.  450.  112  Pa.  St.  258. 

(a)  Daw  V.  Metropolitan  Board, 


2TU  IMPLIED    RKPKAL.  [§  201 

collect  the  taxes,  it  was  held  to  repeal  another,  passed  a  few 
days  before,  creating?  the  office  of  tax-collector  in  one  of  the 
counties  enumerated." 

§  201.  Revisions  and  Codifications.— [I'ut  possibly  the  stron,^- 
cst  implication  of  a  negative,  very  similar  to  that  referred  to 
in  the  preceding  section,  is  found  where  subsequent  statutes 
revising  the  whole  matter  of  former  ones,  and  evidently  in- 
tended as  substitutes  for  them,  introduce  a  new  rule  upon 
the  subject.  In  such  cases,  the  later  act,  although  it  con- 
tains no  words  to  that  effect,  must,  in  the  principles  of  law, 
as  well  as  in  reason  and  common  sense,  operate  to  repeal  the 
former"' — the  negative  being  implied  from  the  "  reasonable 
inference  that  the  Legislature  cannot  be  supposed  to  have 
intended  that  there  should  bo  two  distinct  enactments  em- 
bracing the  same  subject  matter  in  force  at  the  same  time.'"" 
If  this  could  be  the  case,  it  is  obvious  that  the  later  statute 
could  become  the  law  only  so  far  as  parties  might  choose  to 
follow  it ;'°°  whereas,  the  mere  fact  that  a  statute  is  made 
shows,  that,  so  far  as  it  goes,  and  so  far  as  it  introduces  a 
new  rule  of  general  application,  it  was  intended  as  a  substi- 
tute for,  and  to  displace,  an  earlier  one  of  equally  general 
application.'"  Thus,  where,  of  two  statutes  relating  to  liens 
of  laborers  in  manufactoi'ies  and  intended  to  protect  the  wages 
of  such,  the  one  last  passed  covered  the  entire  subject  matter, 
differing  from  the  earlier  one  in  substitnting  a  limitation 
as  to  amount,  instead  of  as  to  tiine  ;  in  naming  as  parties 
subject  to  the  legislation  all  persons  "  owning  or  leasing 
forges,  furnaces,  rolling  mills,  nail  factories,  machine  shops 
or  foundries,"  instead  of  "owner  or  owners  of  any  manu- 
facturing establishment ;"  in  maidng  the  wages  protected 
a  claim  to  be  paid  by  the  ofHcer  who  sells  the  property, 
in  the  manner  he  is  required  to  pay  rent,  instead  of  merely 
a  "  lien  on  the  establishment ;  "  in  ])referring  such  claims  in 
all  assignments,  to  rank  immediately  before  rent  in  case  of 
death,  and  to  be  paid  ''in  all  cases  of  execution,"  instead  of 

'T  Pnople  V.  Lylle,  1  Idalio,  IGl.        (Mass.)  480,  481  ;   Herron  v.  Car- 
9»  Banlett  V.  King,  13  Mass.  540,      son,  2G  W.  Va.  G3. 
per  Dewey,  J.  ^"^  Barker  v.   Bell,  46  Ala.  216, 

»9  Com'lli   V.   Kelliher,   13  Allen      221. 

"»  See  Ibid. 


§  202]  implip:d  kepeal.  271 

making  them  payable  out  of  the  proceeds  of  sale  only  in  the 
event  of  death  or  insolvency, — it  was  held  that  the  later  act, 
upon  the  ])rinciple  above  stated,  must  be  held  impliedly  to 
repeal  the  earlier.*"''  So  an  act  providing  a  new  system  in 
eases  of  land  damages  for  the  laying  out  of  roads,  by  requir- 
ing the  county  courts  to  institute  and  prosecute,  in  their 
uames,  in  the  circuit  court,  proceedings  to  ascertain  the 
compensation  to  be  paid,  repeals  by  necessary  implication  a 
former  act  providing,  that,  in  such  cases,  the  county  courts 
should  award  a  writ  of  ad  quod  damnum  returnable  to  such 
courts."^  So,  again,  where  the  subject  of  the  incorporation 
and  management  of  building:  associations  was  covered  and 
regulated  by  acts  imposing,  in  some  respects,  different  modes 
of  incorporation,  different  conditions,  duties,  powers  and 
restrictions,  as  compared  with  former  acts  upon  the  same 
subject,  it  was  held  that  the  latter  were  impliedly  repealed."* 
And,  indeed,  the  principle  stated  seems  to  luive  universal 
recognition."* 

§  202.  [The  rule  seems,  indeed,  to  go  farther,  and  to  work 
an  implied  repeal  in  all  cases  in  which  a  general  revision  of 
the  old  law  is  made  by  the  Legislature,  with  an  intent  to  sub- 
stitute the  new  legislation  for  the  old.'°^  Upon  this  principle 
it  has  been   applied  to  codifications ;'"  whilst,  on  the  other 

102  Johnston's  Est.,  33  Pa.  St.  Dowell  v.  State,  58  Ind.  333; 
611.  State     V.    Studt,   31     Kan.    245  ; 

103  Herron  v.  Carson,  26  W.  Va.  Pulaski  Co.  t.  Downei-,  10  Ark. 
62.  588  ;  State  v.  Rogers,  10  Nev.  319  ; 

'04  Cahall  V.  Cit.  Mut.  B'g  Ass'n,  but     see    liogan    v.    Guigon,     29 

61  Ala.  232  ;   Rhoads  v.  B'g  Ass'n,  Gratt.  (Va.)  7Uo.     And  see  an  elab- 

82  Pa.  St.  180;   Booz's  App.,  109  orate  discussion   of    this  subject. 

Id.  592.     See  Endl.,  Baild.  Ass'ns,  with  profuse  citation  of  decisions, 

§  34  note.  Bish.,  Wr.  Laws,  §§  158-163a. 

105  See  in  addition  to  above  cases,  io6  ggg  People  v.  Carr,  36  Hun 

Norris  V.   Croelcer,  13  How.  429 ;  (N.    Y.)    488;    Weiss    v.    Maiich 

U.    S.    V.    Tynen,    11     Wall.    88;  Chunk  Iron  Co.,  58  Pa.  St.    295, 

King  V.  Cornell,  lOG  U.  S.  395  ;  U.  802 ;  Con.'th  v.  Cromley,  1  Aslira. 

S.   V.  Checseman,    3  Sawyer,  424 ;  (Pa.)  179;  Prince  George  Co.  v. 

U.  S.  V.  Barr,  4  Id.  254;  Excelsior  Laurel.    51    Md.    457;   Gorham  v. 

Petrol.    Co.   V.  Embury,  67  Ba^b.  Linckett,    6   B.    Mon.    (Ky.)   146  ; 

(K   Y.)  261  ;   Goodenow  v.    But-  Rogers  v.   Watrous,    8    Tex.   62 ; 

trick,    7  iMass.     140  ;     Com'th  v.  Slii-man  v.  State.  21  Id.  734  ;   Har- 

Coolev,  10  Pick.    (Mass.)  39;   111.,  old  v.  State,  16  Tex.  App.  157. 

etc..  Canal  v.  Chicago,  14  III.  334;  iot  Qqq  ytate  v.  Harris,  10  Iowa 

Andrews  v.    People,    75  Id.   605;  441 ;  Ripley  v.  Gifford.  11  Id.  367  ; 

Stale  V.    Conkliug,    10   Cal.   501  ;  Barker  v.  Bell,  46  Ala.  216  ;  Ilart- 

Farr  v.  Brarkett,  30  Vt.  344  ;  Gid-  ley  v.  Hartley,  3  Mete.  (Ky.)  56  ; 

dings  V.  Coxe,  31   Id.   60  ;   Wake-  Thorpe  v.  Schooling,  7  Nev.  15. 
field    V.    Phelps,    37  N.    II.    295; 


272  IMPLIED    KEPKAL.  [§  203^ 

hand,  the  repealing  effect  of  revising  statutes  and  codifica- 
tions has  been  frequently  limited  to  such  matters  embraced 
in  the  old  law  as  were  omitted  in  the  new,'"'  or  permitted 
to  operate  only  in  cases  of  manifest  repugnancy""  and  not 
beyond  the  immediate  object  of  the  codification,""  and  even 
a  failure  to  incorporate  a  statute  in  a  revision  was  held  not 
to  be  a  repeal  of  it,  where  the  act  directing  the  revision 
declared  that  "  all  acts  .  .  in  force  at  the  commence- 
ment of  the  .  session  .  .  shall  be  .  .  continued  in 
full  force  and  effect,  unless  .  .  repugnant  to  the  acts 
passed  or  revised  "  at  the  same."'  But  the  general  rule 
seems  to  be  that  statutes  and  parts  of  statutes  omitted  from 
a  revision  are  to  be  considered  as  annulled,  and  are  not  to  be 
revived  by  construction."" 

§  203.  Qualifications  of  Foregoing  Rules.— [Where  a  statute  of 
a  state  prescribes,  as  a  rule  of  construction,  that  the  provis- 
ions of  any  statute,  so  far  as  they  are  the  same  as  any  prior 
statute,  are  to  be  regarded  as  a  continuation  of  the  same, 
and  not  as  a  new  enactment,"^  an  act  revising  and  con- 
solidating former  acts,  and  re-enacting  their  provisions  in  the 
same  words,  must,  although  expressly  repealing  the  earlier 
statutes,  be  construed  as  a  continuation  of  them."^  And 
the  rule  of  implied  repeal  is  clearly  inapplicable,  also,  where 

108  See  Bracken  v.  Smith,  39  N.  "^  Such  a  rule  seems  now  to 
J.  Eq.  169  ;  Georgia  K.  K.  Co.  v.  obtain,  as  to  acts  repealed  or  re- 
Kirkpatrick,  35  Ga.  144;  State  v.  enacted  by  a  code  or  other  revision. 
Judge,  37  La.  An.  578.  in  Massachusells,  Wisconsin, 
'"'•*  Lyon  V.  Fisk,  11  La.  An.  444.  Minnesota,  Kentucky,  Missouri, 
110  Whitehead  v.  Wells,  29  Ark.  Washin.iiton  Ter.  Idaho  Tcr.  and 
99  ;  and  see  Needham  V.  Thresher.  Ulah  Ter.,  and,  generally,  in 
49  Cal.  393.  Illinois,  Kansas,  Texas  and  Call- 
in  Cape  Girardeau  Co.  Ct.  v.  fornia  :  see  Stimson,  Amer.  Stat. 
Hill,  118  U.  S.  08.-  See  infra,  Law,  p.  143,  §1043.  Butsee  Ibid., 
I  203.  that  no  slatute  is  considered  in 
"■2  See  Ellis  v,  Paige,  1  Pick,  force  merely  because  consistent 
(Mass.)  43,45  ;  Ilutlanci  V.  Mendon,  with  the  provisions  of  the  Code, 
Id.  154  ;  Blackburn  v.  Walpole,  9  but  is  held  repealed  imless  ex- 
Id.  97;  Stafford  v.  Creditors,  11  prcssly  continued  in  force  by  the 
La.  An.  470  ;  Pingree  v.  Snell,  42  code  or  other  revision,  in  Iowa, 
Me.  53  ;  Broaddus  v.  Broaddus,  10  North  Carolina,  Tennessee,  Te.Tas, 
Bush  (Ky.)  299  ;  Campbell  v.  Case,  California,  Mississippi,  and  Wash- 
1  Dak.  17;  Tafoya  v.  Garcia,  1  ington,  Dakota  and  Montana  Ter- 
New  ]\Iex.  480.  See,  however,  as  ritories.  Expressly  otherwise, 
to  slight  variations  of  language  m  however,  in  Missouri  and  South, 
re-enactments,  etc.,  post,  t;^?  378-  Carolina. 
381.                                          '  "■•  Sehcftels   v.  Tabert,  46  Wis.. 


§  203]  IMPLIED   KEPEAL.  273 

the  revisins:  statute  declares  wliat  effect  it  is  intended  to 
Iiave  upon  the  former  law  ;  as,  where  it  declares  that  it  shall 
operate  as  a  repeal  of  such  provisions  of  earlier  acts  as  are 
inconsistent  with  it,  which  is  rei^arded  as  a  declaration 
that  it  shall  repeal  only  such  provisions  and  leave  unaffected 
such  as  are  not  inconsistent."^  The  question  of  implied 
repeal  being,  after  all,  a  question  of  implied  intention, — 
where  the  Legislature  expressly  declares  what  effect,  in 
the  way  of  repeal,  an  act  is  intended  to  have,  there  is 
no  room  for  any  implication."'  It  has  even  been  held, 
that  a  specific  repeal  by  one  statute  of  a  particular  sec- 
tion of  another  raises  a  clear  implication  that  no  further 
repeal  is  intended,'"  unless  there  is  an  absolute  incon- 
sistency between  other  provisions  of  the  two  statutes."* 
But,  where  there  is  such  a  repugnancy  between  the  pro- 
visions of  a  later  act  revising  the  whole  subject  mat- 
ter of  sev^'al  former  ones  and  expressly  repealing  one 
of  them,  and  the  provisions  of  another  not  expressly 
repealed,  the  latter  will  nevertheless  be  abrogated  by 
implication."'  A  revisal  repealing  all  acts  repugnant  to 
the  provisions  thereof,  cannot  affect  statutes  which  are 
omitted  and  which  are  not  repugnant  to  its  provisions."" 
Moreover,  to  ascertain  the  effect  of  a  revision,  in  this  parti- 
cular, it  is  necessary  to  "put  together  and  construe  as  one 
act  the  act  which  authorized  the  compilation,  and  the  act 
which  subsequently  put  the  revisal  into  operation.'"'  And 
where  the  former  gave  the  compilers  no  authority  to  onnt 

439.     And  see  State  v.  Co.  Ct.,  53  "®  Thus,  -where  an  act  express!}'' 

Mo.    128.     But    see    Emporia    v.  repealed  so  much  of  a  former  one 

Norton,  IG  Kan.  236,  where,  under  as  provided,  etc.,  it  was  held  that 

such     a     rule    of     constiuclion,  there  could    be  no  implication  of 

"unless  such  construction  would  an  intention  to  repeal  anything  be- 

he  inconsistent  with  the  manifest  yond  :    Purcell  v.  N.  Y.   Life  Ins. 

intention   of  the  Legislature,"    it  Co.,  43  N.  Y.  Super.  Ct.  383. 

was  held,  that  a  statute  enacted  in  "■"  State  v.  Morrow,  26  Mo.  131. 

the  same  terms  as  a  former  one.  See  also  Kilgore  v.  Com'th,  94  Pa. 

which  had  accomplished  its  entire  St.  495,  post,  §  227.     And  comp. 

purpose  and  exhausted  its  force,  §  398. 

should  not  be  construed  as  a  con-  "*  Crosby  v.  Patch,  18  Cal.  438. 

tiuuatiou  of  the  same.  "'  Prince  George  Co.  v.  Laurel, 

"^Patterson  v.  Tatum,  3  Sawyer,  51  Md.  457. 

1G4;  Lewis  v.  Stout,  22  Wis.  284;  '•"'  State  v.  Pollard,  6  R.  I.  290. 

Gaston  v.  Meriuam,  33  Minn.  271.  '^^  State  v.  Cunniugham,   73  N. 

But  see   U.   S.   v.   Cheeseman,   3  C.  469,  476. 
Sawyer,  434. 

18 


274 


IMrrjKD    KKPKA.L.  [§  205 


any,  but  directed  a  compilation  of  all,  hnvs  in  force,  and  the 
lat'ter  repealed  "all  acts  and  parts,  of  acts  the  subjects 
Avliereof  are  digested  in  this  revisal  or  which  are  repugnant 
to  the  provisions  thereof,"  an  act,  which  is  neither  brought 
forward  in  the  revisal  nor  repugnant  to  its  provisions,  is,  of 
course,  not  repealed  by  it.'" 

§204.  Implied  Repeal  of  Common  Law. — [The  principle  un- 
der discussion  applies  not  only  to  statute  law,  but  also 
to  the  common  law,  the  latter  being  deemed  superseded  by 
a  statutory  revision  of  the  entire  subject,'"  either  when  it  is 
couched  in  negative  terms,  or  when  its  affirmative  provi- 
sions are  inconsistent  with  the  continued  operation  of  the 
common  law."* 

[Similarly  where  a  statute  enacted  by  the  Legislature  of  a 
state  covers  the  entire  subject  matter  of  a  statute  theretofore 
in  force  in  the  state,  deriving  its  authority  from  an  enact- 
ment of  the  Legislature  of  another  state  or  nation  of  which 
the  state  was  formerly  a  part,  or  to  which  it  was  subject,  the 
older  law,  though  not  expressly  repealed,  is  deemed  abroga- 
ted.'^^ 

§  205.  Limits  of  Extent  of  Repeal  by  Implication. — [But,  in  all 
nuitters  of  repeal  resulting  by  implication,  from  an  affirma- 
tive act  e.\C('])t  where  the  intent,  appearing  from  a  design  to 
substitute  the  new  law  for  the  old,  in  toto,  is  clearly  to  the 
contrary,  it  must  be  rememl)ered  that  the  repeal  extends 
onlv  so  far  as  the  "provisions  of   the    statutes   affecting  each 

'--  Ibid.     Sucli   a  conclusion  is  making    an    act,    which    was    an 

strent^t honed  by  a  consideration  of  offence  at  common  law,  an  offence 

the  obvious  impossibility  of  making  by    statute,    repeals  the    common 

any    revision  so  complete    as    to  law).     But  see  Washington,  etc., 

embrace     all     general    laws,— an  Iload  v.  State,  19  Md.  239  (where 

impassibility   recognized,  in  spite  it  is  held  tiiat  an  act  fixing  a  pen- 

of    the   fact  that   the   revision   of  ally   for   an   offence,    but    neither 

statutes  raises  a  presumption  that  expressly  nor  by  necessary  irapli- 

it  was  intended  to  establish  a  com-  cation  destroying  the  common  law 

plete  code  of  laws,  by  a  provision  remedy,    is    cumulative    merely), 

of  an  adopting  clause  that  statutes  Compare  post,  §^  463,  et  seq. 

of  a  general  nature  which  are  not  '-■'State  v.  Norton,  23  N.  J.  L. 

repusruant  to  the  revision  should  33;  State  v.  Wilson,  43  N.  11.415. 

remain  in  force  :  Com'th  V.  Mason,  '"Mason     v.    Waite.    1    Fick. 

82  Ky.  2')Q.  (Mass.)  452  (the  case  of  an  English 

'-^Coni'ih   V.    Cooley,  10  Pick,  statute);     Towle    v.     Marrett,    3 

(Mass.)  37  ;  Com'th  v.  ^Marshall,  11  Greeul.  (Me.)  23  (of  a  Massachu- 

Id.  350  ;  State  v.  Boogher,  71  j\Io.  setts  act). 
631  tvvhero  it  is  held  that  a  statute 


§  200]  IMPLIED    REPEAL.  275 

other  are  inconsistent;  the  old  law  bcinf^,  in  all  other 
respects,  left  in  fnll  force  and  effect."'  AVluitever  portions 
of  the  old  law  may  be  incorporated  with  the  new,  as  being- 
consistent  with  the  latter,  mnst  be  deemed  to  remain  in 
force.'"  Thus,  an  act  amending  the  charter  of  a  town  and 
giving  to  the  mayor  and  aldermen  the  exelnsivc  right  to 
grant  licenses  for  the  sale  of  spirituous  liquors,  would  not 
supersede  the  general  law  requiring  the  application  for  a 
license  to  retail  to  be  recommended  by  a  majority  of  the 
legal  voters.*^*  And]  if  one  act  imposed  a  toll,  payable  to 
turnpike  trustees,  for  passing  along  a  road,  and  another 
transferred  the  duty  of  repairing  the  road  to  another  body, 
l^rohibiting  also  the  trustees  from  repairing  it,  the  toll  would 
not  be  thereby  impliedly  repealed  (a). 

[This  is  so,  indeed,  even  where  the  later  act  contains  an 
express  repeal  of  "  all  inconsistent "  acts,  etc.'^^] 

§  206.  Expressed  Intention  to  Repeal. — Yet,  where  a  statute 
contemplates  in  express  terms  that  its  enactments  will  repeal 
earlier  acts,  by  their  inconsistency  with  them,  the  chief 
argument  or  objection  against  repeal  by  implication  is 
removed,  and  the  earlier  acts  may  be  more  readily  treated 
as  repealed.  Thus,  after  a  local  act  had  directed  tlie  trus- 
tees of  a  turnpike  to  keep  their  accounts  and  proceedings  in 
books  to  which  "  all  persons"  should  have  access,  the  Gene- 
ral Turnpike  Act,  which  recited  the  great  importance  that 
one  uniform  system  should  be  adhered  to  in  the  laws  regu- 
lating turnpikes,  and  enacted  that  former  laws  should  con- 
tinue in  force,  except  as  they  were  thereby  varied  or  repealed, 

126 -^ood  V.  U.  S.,  16  Pet.  342;  must  be  assailed,  and  the  amount 

McCool   V.    Smith,    1  Black  459  ;  to  be  paid  by  the  purchaser). 

Mongeon  v.  People,  55  N.  Y.  613  ;  '"  Daviess  v.  Fairbairn,  3  How. 

Sullivan    v.   People,   15  111.   233;  636. 

Watson  V.  Kent,  78  Ala.  603  ;  Pub.  I'-s  House  v.  State,  41  Miss.  787. 
School  Trustees  v.  Trenton,  30  N.  (a)  Phipson  v.  Harvett,  1  C.  M. 
J.  Eq.  667  ;  Re  Contested  Election  &  R.  473.  Comp.  Brown  v.  G.  "W. 
of  Barber,  86  Pa.  St.  393  ;  Connors  R.  Co.,  51  L.  J.  Q.  B.  539. 
V.  Iron  Co.,  54  Mich.  168;  Elrod  '^^  People  v.  Durick,  20  Cal.  94; 
V.  Gilliland,  27  Ga.  467  ;  Coats  v.  and  see  also  Hickory  Tree  Road, 
Hill,  41  Ark.  149  (where  an  act  to  43  Pa.  St.  139.  And  a  statute  re- 
quiet  land  titles  was  held  not  pealing  all  former  acts  within  its 
repealed  by  the  general  revenue  purview  does  not,  as  to  matters  not 
laws,  which  contained  nothing  provided  for  by  itself,  repeal  the 
inconsistent  with  the  former,  except  provisions  of  former  laws:  Payne 
as  to  the  time  in  which  a  tax  title  v.  Connor,  3  Bibb  (Ky.)  180. 


276  IMPLIED    REPEAL.  [§  20 T 

directed  that  the  trustees  sliould  keep  tlieir  accounts  in  a 
book  to  be  open  to  the  inspection  of  the  trustees  and  credi- 
tors of  the  tolls,  and  that  the  book  of  their  proceedings 
should  be  open  to  the  inspection  of  the  trustees  ;  it  was  held 
that  the  power  of  inspection  of  proceedings  given  by  the 
iirst  act  to  "  all  persons"  was  repealed  {a).  [Thus  a  decla- 
ration in  a  general  law  that  all  acts  or  parts  of  acts,  whether 
local  or  special,  or  otherwise,  inconsistent  with  its  provis- 
ions, are  to  be  deemed  repealed,  will  repeal  inconsistent  pro- 
visions even  in  special  acts,""  And  where  an  act  expressly 
repealed  certain  designated  sections  of  the  lievised  Statutes 
of  the  state,  and  in  general  terms  all  previous  acts  in  conflict 
with  it,  it  was  held  that  it  repealed  every  previous  act  iden- 
tical with  any  of  those  expressly  repealed.'''] 

§  207.  Acts  Conferring  Conflicting  Rights,  etc. — A  later  Act 
which  conferred  a  new  right,  M'ould  repeal  an  earlier  one,  if 
the  co-existence  of  the  right  which  it  gave  would  be  pro- 
ductive of  inconvenience  ;  for  the  just  inference  from  such 
a  result  would  be  that  the  Legislature  intended  to  take  the 
earlier  right  away  {h).  [A  statute  fixing  a  salary  different 
from  one  prescribed  by  a  former  act,  by  necessary  implica- 
tion repeals  the  latter."^]  The  Point  Stock  Banking  Act  of 
1  Geo.  4,  c.  46,  which  besides  limiting  and  varying  the  com- 
mon  law  liabilities  of  members  of  banking  companies,  pro- 
vided that  suits  against  such  companies  should  and  lawfully 
might  be  instituted  against  the  public  officer,  was  held  to 
take  away  by  implication  the  common  law  right  of  suing 
the  individual  members  (c),  for  from  the  nature  of  the  case, 
this  nmst  have  been  what  the  Legislature  intended  {d)^ 
[But  not  only  does  the  grant  of  a  power  by  the  Legislature 
inconsistent  with  a  former  one  repeal  the  latter,'"   but  in 

{a)  R  V.  Northleach,  5  B.  «&  Ad.  Ex.  Gl,  1  L.  M.  &  P.  20!) ;  Davison 

978.  V.  Farmer,  6  Ex.  252  ;   0'Flaht>ity 

'30  State  V.  Williamson,  44  N.  J.  v.   McDowell,   6  II.    L.  143.     See 

L.  165.     See  post,  §^  223,  et  seq.  also  Green  v.  R.,  1  App.  (H.  L.) 

'^'  State  V.  Barrow,  30  La.  An.,  513.    Roles  v.  Roscwell,  and  Hardy 

P.  I.  G57.  V.  Bern,  5  T.  R.  538. 

(6)  See  inf.  §§245.  251,  seq.  {d)   Per    Lord     Cranworth      in 

'3*  Pierpont  v.   Crouch,  10  Cal.  O'Flaberty  v.  McDowell,  0  II.  L. 

315.  '  157.      Sec  Cowlev  v.  Byas,  5  Cb. 

(c)  Steward  v.  Greaves,  10  M.  &  D.  944. 
W.    711  ;  Chapman   v.    Milvain,  5         '^^  Korah  v.  Ottawa,  32  111.  121. 


,§  208]  IMPLIED  KEPEAL,  277 

general,  the  grant  of  a  power  conditioned  on  different 
things, — e.  g.,  where  an  act  providing  for  appeals  from  the 
assessment  of  railroad  damages  gave  thirty  days  after  con- 
firmation of  the  report  of  viewers  from  the  entry  of  an 
appeal,  and  a  subsequent  one  upon  the  same  subject  gave 
thirty  days  from  iho  filing  of  the  report  for  the  same  pur- 
pose,— the  latter  was  held  to  repeal  the  former."* 

[But,  as  a  question  of  legislative  intent,  it  has  been  held, 
that,  where  a  statute,  the  manifest  object  of  which  was  to  ex- 
tend a  benefit,  or  create  a  right,  was  passed  under  a  misappre- 
hension, or  in  ignorance  of  the  existence  or  effect  of  a  former 
law,  which  gave  a  greater  benefit,  or  created  a  greater  right 
than  the  new  law,  the  latter  should  not  be  held  to  affect  the 
former,  so  as  to  repeal  the  right  or  benefit,  unless  an  intention 
appeared  upon  it  that  the  limits  fixed  by  it,  and  nothing 
beyond,  should  regulate  the  matter,  and  that  the  rights  and 
benefit  conferred  by  it  and  no  greater,  should  be  enjoyed.'"] 

§  208.  Elfifect  of  Inconvenience  and  Incongruity  between  Acts. — 
In  other  circumstances,  also,  the  inconvenience  or  incon- 
gruity of  keeping  two  enactments  in  force  has  justified  the 
conclusion  that  one  impliedly  repealed  the  other,  for  the 
Legislature  is  presumed  not  to  intend  such  consequences. 
Thus,  the  9  Geo.  4,  c.  61,  which  prohibited  keeping  open 
public-houses  during  the  liours,  of  afternoon  divine  service, 
was  held  repealed  by  implication  pro  tanto  by  the  18  &  19 
Vict.  c.  118,  which  prohibited  the  sale  between  three  and 
five  o'clock  p.  M.,  the  usual  hours  of  afternoon  divine  ser- 
vice. If  both  Acts  had  co-existed,  it  would  have  been  in 
the  power  of  the  clergyman  of  every  parish  to  close  the 
public-houses  for  four  hours  instead  of  two,  by  beginning 
the  afternoon  service  at  one  or  at  five  p.  m.,  an  intention  too 
singular  to  be  lightly  attributed  to  the  Legislature  (a).     [So, 

'34  Gwinner  v.  R.  R.  Co.,  65  Pa.  implication  from  a  later  act,  see 

St.  126.     See  also  New   Haven  v.  Johnston's  Est.,  33  Pa.  St.  511. 

Whitnty,  36  Conn.   373  ;  District  {a)  R.  v.  Wliiteley.   3  H.   &  N. 

Townsliip,    etc.     v.   Dvibuque,     7  143;   Wliiteley  v.  Heatou,  27  L.  J. 

Iowa,  272.  M.  C.  217,  8.   C.      See  Harris  v. 

•35  Tyson    v.    Postlethwaite,  13  Jenns,  9  C.  B.  N.  S.  152  ;  30  L.  J. 

111.    727.      That,    however,    mere  183  ;  R.  v.  Senior,  1  L.  «&  C.  401. 

presumptive  ignorance  of  the  exis-  33  L.  J.  M.  C.  125  ;  R.  v.  Bucks,  1 

tance  of  an  act  by  the  Legislature  E.  &  B.  447  ;  R.  v.   Knapp,  22  L. 

•will    not    prevent    its    repe;)l    by  J.  M.  C.  139,  S.   C.      See  another 


278  IMPLIED    REPEAL.  [§  209 

too,  where  a  statute  in  corporating  a  corporation  declared 
tluit  the  charter  granted  by  it  should  be  forfeited  by  failure 
of  the  company  to  organize  and  commence  business  within 
(ifte  year  from  the  passage  of  the  incorporating  act,  and  sub- 
•icquently,  eighteen  days  before  the  expiration  of  the  period 
Mms  limited,  the  organization  not  having  been  perfected,  nor 
business  commenced,  an  act  was  passed  amending  the  charter 
containing  the  directors  in  office  for  a  year,  and  authorizing 
the  stock  subscription  book  to  be  again  opened  ;  it  was  held 
that  the  fair  construction  of  the  latter  act  was  that  it  operated 
to  repeal  the  limitation  contained  in  the  original  act  and  to 
give  the  company  one  year  from  the  time  of  its  passage  for 
perfecting  its  organization  and  commencing  its  business,  it 
being  wholly  improbable  that  the  Legislature  intended  that 
the  company  should  do  both  within  the  short  space  of  eight- 
een days.''"] 

§  209.  EflFect  of  Later  Liegislation  as  Showing  Intent  to  Repeal. 
— An  intention  to  repeal  an  Act  may  be  gathered  from  its 
repugnancy  to  the  general  course  of  subsequent  legislation.'" 
Thus  the  7  Geo,  1,  c.  21,  which  prohibited  bottomry  loans 
by  Englishmen  to  foreigners  on  foreign  ships  engaged  in  the 
Indian  trade,  was  held  to  have  been  silently  repealed  by  the 
subsequent  enactments  which  put  an  end  to  the  monopoly 
of  the  East  India  Company,  and  threw  its  trade  open  to 
foreign  as  well  as  to  all  British  ships  (a). 

[As  an  instance  of  the  operation  of  this  rule  may  be 
mentioned  the  effect  which  has  been  given  by  the  courts  of 
various  jui'isdictions  to  the  statutes  enabling  married  women 
to  sue  and  be  sued,  u])on  the  exemptions  contained  in  their 
favor  in  the  statutes  of  limitations.  Where  such  powers  are 
conferred  upon  niarried  women,  it  is  said  that  "  the  various 
provisions  that  coverture  shall  be  one  of  the  disal)ilities  in 
case  of  which  time  does  not  run  against  the  plaintiff,  can  no 

example  of  a  similar  kind,  in  Man-  fact  that  the  latter  was  expressly 

Chester  (.Mayor)  v.  Lyons,  22  Ch.  repealed  by  a  still  later  one. 

D.  277.  (a)  Tlie    India,    Br.   &  L.    221. 

138  Johnson  v.  Bush,  3  Barb.  Ch.  See  also  R.   v.  Northleaeh,  5  B.  & 

(N.  Y.)  207,  238.  Ad.  978.      Conip.   per  Ex.  Cli.  in 

'■■''  As  has  been  seen,  ante  g  47,  Shrewsbury  v.    Scott,   6   C.  B.  N. 

an  intention  that  a  certain  act  was  S.  1.     See  another  illustration  in  32 

not    to    ()i)CTate     as    a    repeal     of  &  i>3  "Vict.  c.  GS  ;   Ee    Ycavwood's 

unolher  may  be  inferred  from  tlie  Trusts,  5  Ch.  I).  545. 


§  209]  IMrLIED  REPEAL.  279 

longer  be  held  to  apply."""  Tliey  have  accordingly  been 
held  to  be  silently  repealed  by  the  English  Married  Women's 
Property  Act  of  1882.'^'  The  same  effect  lias  been  given  to 
the  Illinois  married  womairs  act  of  1801,"'  and  approved 
by  the  Supreme  Court  of  the  United  States,"'  declaring  that 
the  povt^ers  conferred  by  the  act  so  completely  annihilate  the 
existence  of  every  reason  for  the  exemption,  that  it  would 
be  absurd  to  hold  that  the  two  acts  could  stand  together."' 
Similar  effect  has  been  held  to  follow  the  enactment  of  the 
California  statute  enabling  married  women  ;"'  and  so  in 
Ohio,"*  and  in  Maine/"  This  effect  has,  however,  been 
denied  to  similar  enactments  in  Mississippi,"'  ISTorth  Caroli- 
na"^ and  Arkansas."' 

[But  the  repeal  of  a  statute  is  not  to  be  implied  from  the 
mere  fact  that  some  of  the  evils  provided  against  in  it  are 
subsequently  removed."'  Hence  where  an  act  passed  in 
1847  required  the  sheriff  of  a  certain  county  to  hold  certain 
municipal  elections  on  a  designated  day  "  in  each  and  every 
year,"  and  fixed  a  penalty  for  his  neglect  to  do  so  ;  and  an 
act  passed  in  1849  provided  for  the  holding  of  such  elections 
at  any  other  times  than  those  appointed  by  the  act  of  1847, 
if  omitted  to  be  held  on  the  proper  day,  it  was  decided  that  the 
act  of  1849  did  not  repeal  the  provisions  of  that  of  1847  as 
to  the  duty  of  the  sheriff  and  the  penalty  incurred  by  him 
by  neglect  thereof.""] 

'S8  Thicknesse,   H.  &  W.,  at  p.  "^  State  v.  Smith.  83  N.  C.  306; 

219.  State  v.  Troiitman,  72  Id.  551. 

139  "^eldon  V.  Neal,  51  L.  T.,  N.  '^^  Hershey  v.  Latham,  43  Ark. 

S.,   289;  33  W.  R.   828;  Lowe  v.  305.     In  New  York,  under  the  acts 

Fox,  (C.  A.)L.  R.  15  Q.  B.  D.  667.  enabling  married  women  to  sue,  it 

'^"Haywood    v.    Guiin,   83  111.  was  at  first  held  that  the  exceptions 

385;  Castiier  V.  Walrod,  83  Id.  171.  in  ti.eir  favor  in  the  statutes  of 

Enos  V.  Buckley,  94  Id.  458;  Gei-  limitations  were  rendered  in  appli- 

sen  V.  Heiderich,  104  Id.  537  (ex-  cable:   Ball    v.   Bullard,  53  Barb, 

cept ion  in  favor  of  married  women  141;   but  this  doctrine  was  subse- 

in  act  relating  to  prosecution  of  quently  questioned:  see   Clark  v. 

writs  of  error.)  McCann,  18  Hun   13;  Dunham   v. 

»'  Kibbe  v.  Ditto,  93  U.  S.  674.  Sage,  52  N.  Y.  229;  and  the  matter 

^*-  Ibid.,  at  p.  678.  was  finally  set  at  rest  by  the  act  of 

^*^  Cameron    v.   Smith,   50  Cal.  1870,  ch.  741,  dropping  coverture 

303.  from   the  enumeration  of  disabili- 

1^  Ong v.  Sumner,  1  Cine.  Super,  ties:  Acker  v.  Acker, 81  N.  Y.  143, 

Ct.  424.                    ■  and  see  Clarke  v.  Gibbons,  83  Id. 

"=  Brown    v.    Conseno,   51    Me.  107. 

301.  '^^  Alexandria    v.     Dearmon,   3 

^*^  McLaughlin  v.   Spengler,   57  Sneed  (Tenn.)  104, 

Miss.  818.  '^0  Ibid. 


280  AVOIDANCE  OF  IMPLIED  UEPEAL.  [§  210 


CHAPTER  YIII. 

Presumption  against  Repeal  by  Implication.     General, 
Special  and  Penal  Acts. 

§  210.  Repeal  by  Implication  not  Favored. 
§  211.  Couflict  between  Acts  often  merely  Apparent. 
§  215.  Modification  to  Escape  Repeal.     Exceptions. 
§  217.  Negative  Statutes  Afiirmative  Inter  se. 
§  218.  Statutes  without  Expressed  or  Implied  Negative. 
§  22'2.  Acts  merely  giving  Diroclion  iind  Application  to  Old  Law. 
§  223.  Generalia  Specialibus  Non  Derogant. 

§  220.  Merely  Seeming  Repugnancy  between  General  and  Special  Acts. 
§  227.  Personal  and  Local  Acts. 
§  228.  Charters,  etc.  Municipal  Corporations. 
§  229.  Corporations  Other  tlian  Municipal. 
§  230.  When  General  Act  Repeals  Special. 

§  231.  Effect  of  General  Act  Intended  to  Furnish  Exclusive  Rule. 
§  232.  General  Act  in  Terms  Applying  to  Subject  of  Special  Act. 
§  233.  Special  Act  Incorporating  Provisions  of  General  Act. 
§  234.  Implied  Repeal  between  Special  Acts. 

§  235.  No  Implied  Repeal  between  Penal  Acts  where  Objects  not  Iden- 
tical. 
§  236.  Cumulative  Punishments  and  Procedure. 
§  237.  Cbange  in  Locality  and  other  Incidents  of  Punishment. 
§  238.  Change  m  Quality  and  Incidents  of  Offence. 
§  239.  Change  in  Degree  of  Punishment. 
§  240.  Where  Degree  of  Crime  is  Preserved. 
§  241.  Statute  Covering  whole  Subject  Matter. 
§  243.  Revenue  Laws. 
§  244.  Secondary  Meaning. 

§  210.  Repeal  by  Implication  not  Favored. — But  repeal  by 
implication  is  not  favoured  (a).     It  is  a  reasonable  presump- 

(a)  Foster's  Case,  11  Rep.  63a.  Y  )  427;  People  v.  Van  Nort,  64 
nVIcCool  V.  Smith,  1  Black,  495;  U.  Barb.  (N.  Y.)  205;  McCarter  v. 
S.  V.  67  Packages,  17  How.  85;  U.  Orph.  Asylum.  9  Cow.  (N.Y.)  437; 
S.  V.  Walker,  22  Id.  2!)9;  U.  S.  v.  N.Y.,  etc..  Rv.  Co.  v.  Supervisors, 
25  Cases,  Crabbe,  356;  U.  S.  v.  100  67  How.  Pr.*(N.  Y.)  5;  Chamber- 
Barrels,  2  Abb.  U.  S.  305;  Bowen  lain  v.  Ciiamberlain,  43  N.  Y. 
V.  Lease,  5  Hill  (N.  Y.)  221;  Catta-  424  ;  People  v.  St.  Lawrence  Co., 
raugus  Co.  v.  Willey,  2  Lans.  (N.  103  N.  Y."  541;  Loker  v.  Brookline, 


§  210]  AVOIDANCE  OF  IMPLIED  KKPEAL  281 

tion  that  the  Legishiture  did  not  intend  to  keep  really  con- 
tradictory enactments  in  the  statute-book,  or  to  effect  so 
important  a  measure  as  the  repeal  of  a  hiw  without  express- 
ing an  intention  to  do  so.  Such  an  interpretation,  therefore, 
is  not  to  be  adopted  unless  it  be  inevitable.  Any  reasonable 
construction  which  offers  an  escape  fronn  it  is  more  likely  to 
be  in  consonance  with  the  real  intention.  [Hence  it  is, 
a  rule  founded  in  reason  as  well  as  in  abundant  authority, 
that,  in  order  to  give  an  act  not  covering  the  entire  ground 
of  an  earlier  one,  nor  clearly  intended  as  a  substitute  for  it 
the  effect  of  repealing  it,  the  implication  of  an  intention  to 
repeal  must  necessarily  flow  from  the  language  used,  dis- 
closing a  repugnancy  between  its  provisions  and  those  of 
the  earlier  law,  so  positive  as  to  be  irreconcilable  by  any 
fair,  strict  or  liberal,  construction  of  it,  which  would,  with- 
out destroying  its  evident  intent  and  meaning,  find  for  it  a 
reasonable  field  of  operation,  preserving,  at  the  same  time, 
the  force  of  the  earlier  law,  and  construing  both  together  in 
harmony  with  the  whole  course  of  legislation  upon  the 
subject.*     And  it  may  be  here   stated,  that  the   same  rule 

13  Pick.  (Mass.)  343;  Haynes  v.  Robbins  v.  State,  8  Ohio  St.  311; 
Jenks,  2  Id.  172:  Goddard  v.  Bos-  Bucliiugham  v.  Steubenville,  10 
ton,  20  Id.  407;  Snell  v.  Bridge-  Id.  25;  Lichtenstcin  v.  State,  5  Ind. 
water,  etc.,  Co.,  24  Id.  296:  Mc-  162;  Blain  v.  Bailev,  25  Id.  165; 
Donougli  V.  Campbell,  42  111.  490;  Coin'thv.  Mason.  82  Ky.  256;  State 
Hume  V.  Gossett,  43Id.  297;  Peo-  v.  Woodside,  9  Ired.  L.  (N.  C.) 
pie  V.  Ban',  44  Id.  198;  Hyde  Park  496;  Erwin  v.  Moore,  15  Ga.  361; 
V.  Oakwood  Ceni'y  Ass'u,  119  Id.  Connor  v.  Exp.  Co.,  37  Id.  397; 
141;  Casey  V.  Harned.  5  Iowa  1;  Gillette  v.  Shark,  7  Nev.  245; 
State  V.  Berrv,  12  Id.  58;  Burke  v.  Hockadav  v.  Wilson,  1  Head 
Jeffries,  20  "id.  145;  Wyman  v.  (Tenu.)  113;  Furman  v.  Nichols,  3 
Campbell,  6  Port.  (Ala.)  219;  Hor-  Coldw.  (Tenn.)432;  Smith  v.  Hick- 
tcm  V.  School  Comm'rs,  43  Ala.  man,  Cooke  (Tenn.)  330;  Rogers 
598;  Parker  V.  Hubbard,  64  Id.  203;  v.  Watrous,  8  Te.x.  62;  Stirman  v. 
Riggs  V.  Brewer,  Id.  282;  McAfee  State,  21  Id.  734;  Gill  v.  State,  30 
V.  R.  R.  Co.,  36  Miss.  669;  Naylor  Id.  514;  Schwenke  v.  R.  R.  Co..  7 
V.  Field,  29  N.  J.  L.  287;  Walter's  Co].5l2;and  seecasescited  infra.] 
App.,  70  Pa.  St.  392;  Erie  v.  Bootz,  i  See  Wood  v.  U.  S.,  16  Pet.  342; 
72  Id.  196;  Rhein  Build'g  Ass'n  V.  McCool  v.  Smith,  1  Black.  459; 
Lea,  100  Id.  210,  213-4;  Osborne  v.  Beals  v.  Hale,  4  How.  37  ;  Fur- 
Everitt,  103  Id.  421;  Harrisbnrg  v.  man  v.  Nickol,  8  Wall.  44  ;  Exp. 
Sheck,  104  Id.  53;  People  v.  R.  R.  Yerger,  Id.  85  ;  U.  S.  v.  llender- 
Co.,  28  Cal.  258:  Kerlinger  v.  son's  Tobacco,  11  Id.  653  ;  Clay 
Barnes,  14  Minn.  526;  Goodrich  v.  Co.  v.  Soc'y.  104  U.  S.  579;  Louis- 
Milwaukee,  24  Wis.  422;  State  v.  iana  v.  Taylor,  105  Id.  454  ;  Red 
Morrow,  26  Mo.  131;  State  v.  Rock  v.  Henry,  106  Id.  596  ;  Exp. 
Bishop,  41  Id.  16;  State  V.  Draper,  Crow  Dog,  109  Id.  556;  Chew 
47  Id.  29;  St.  Louis  V.  Ins.  Co.,  Id.  Heong  v.  U.  S.,  112  Id.  536; 
146;  State  v.  Jaeger,  63  Id.   403;  Chamberlain  v.    Chamberlain,    43 


282 


AVOIDANCE  OF  IMPLIKD  KEPEAL. 


[§  ^il 


applies  ccjnallj  to  questions  arisini;^  l)ct\vccn  diilerent  parts 
and  sections  of  the  same  enactment. ^J 

§  211.  Conflict  between  Acts  often  merely  Apparent. — It  is 
sometimes  tound  that  the  conflict  of  two  statutes  is  appar- 
ent, only,  as  their  objects  are  rliffeixMit,  and  the  language  of 
each  is  therefore  restricted,  as  already  ])ointed  out,  to  its 
()\vii  object  or  subject.  When  their  language  issoconflned, 
they  run  in  parrallel  lines,  without  meeting.  Thus  the  real 
property  statute  of  limitations,  3  &  4  Will.  4,  c.  27,  which 
liniifs  the  time  for  suing  for  the  recovery  of  land  (wliich  is 
defined  to  include  tithes)  to  twenty  years  after  the  right 
accrued,  was  found  not  to  ailect  the  provision  of  the  Act 
of  the  preceding  session,  2  and  4  Will.  4,  c.  100,  which 
enacts  that  claims  to  exemption  fi-<>m  tithes  shall  be  valid 
after  non-payment  for  thirty  years ;  for  the  former  Act 
dealt  with  conflicting  claims  to  the  right  of  receiving 
tithes  which  are  admittedly  payable  ;  while  the  latter 
related    to    the    liability    to    pay    them  {(i).       So,    the    i 


N.  Y.  424  ;  lie  The  Evergreens,  47 
Id.  216  ;  Kiiigsland  v.  Palmer,  53 
Id.  83;  People  v.  St,  Lawrence  Co., 
103  N.  Y.  541;  M.  Y.,  etc.,  Ky. 
Co.  v.  Superv's.  G7  How.  Pr.  (N. 
Y.)  5  ;  Roberts  v.  Pahs,  36  III. 
268  ;  People  v.  Barr,  44  Id.  198  ; 
Fowler  v.  Pirkins,  77  Id.  271  ; 
Iverson  v.  Stale,  52  Ala.  170  ; 
Riggs  V.  Brewer,  64  Id.  282; 
Comm'l  B'k  v.  Cbambers,  16  Miss. 
9;  Richards  v.  Patterson,  30  Id. 
583  ;  Slate  v.  Blake,  35  N.  J.  L. 
208  ;  Morris  v.  Del.,  etc..  Canal, 
4  Walts.  &  S.  (Pa.)  461  ;  Street  v. 
Com'th,  6  Id.  209  ;  Dickinson  v. 
Dickinson,  61  Pa.  St.  401  ;  Erie  v. 
Bootz,  72  Id.  196  ;  Williamsport  v. 
Brown,  84  Id.  438;  lie  Cont. 
Elect'n  of  Barber,  80  Id.  392  ; 
Com'th  V.  Ry.  Co.,  98  Id.  127  ; 
AVayne  Co.'s  App.,  4  W.  N.  C. 
(Pa.)  411  ;  Merrill  v.  Gorham,  6 
Cal.  41;  Pratt  v.  R.  R.  Co.,  42  Me. 
579  ;  Atty.-Gen.  v.  Brown,  1  Wis. 
513  ;  State  v.  Mister,  5  Md.  11  ; 
Billingslca  v.  Baldwin,  23  Id.  85  ; 
State  V.  Bishoii,  41  Mo.  16  ;  Lud- 
low V.  Johnston,  3  Ohio,  553; 
Blaiu  V.  Bailey,  25  Ind.  165; 
Water  Works  Co.  v.  Biu'khart,  41 


Id.  364  ;  Carver  v.  Smith,  90  Id. 
222  ;  Connor  v.  Expr.  Co.,  37  Ga. 
397  ;  Lawson  v.  Gibson,  18  Neb. 
137  ;  Slate  v.  Babcock,  21  Id.  599  ; 
Kollenberger  v.  People,  9  Col.  233; 
Walker  v.  State,  7  Tex.  Apj).  245  ; 
Forqueron  v.  Donnally,  7  W.  Va. 
114  ;  Lybbe  v.  Hart,  L.  R.  28  Ch. 
D.  15  ;  and  see  cases  in  pret'eding 
note.  It  is  said  that  the  exposi- 
tion of  statutes  passed  at  the  same 
session,  though  apparently  con- 
liicling,  but  not  directly  repug- 
nant, should  be  such  as  lo  give 
effect  to  what  ai)pears  to  be  IIk; 
mam  intent  of  the  law  maker  : 
La  Grange  Co.  v.  Cutler,  6  Ind. 
354. 

2  Wilcox  V.  Slate,  3  Heisk. 
(Tenn  )  110  ;  and  see  Brown  v.  Co. 
Coram 'rs,  21  Pa.  St.  37.  Comp  ire 
also  on  this  subject,  generally, 
ante,  «?§  183,  183,  187-189,  192, 
195-196. 

(a)  Ely  (Deau  of)  v.  Cash,  15  M. 
&  W.  617.  In  the  one  case,  tithe 
Avas  real  property,  in  the  other, 
a  chattel  :  Elv  (Deau  of)  v.  Bliss, 
2De  G.,  M.  &  G.  459.  See  also 
R.  v.  Everett,  1  E.  &  B.  273 ; 
Adey   v.    Trinity  House,  22  L.  J. 


§  212]  AVOIDANCE    OF    IMl'LTKD    RKPP:AL.  28.> 

ife  2  Vict.  c.  110,  s.  13,  wliicli  enacted  that  a  judgment 
against  any  person  should  operate  as  a  charge  on  "lands, 
rectories,  advowsons,  tithes,"  and  heriditainents  in  wliich  the 
judgment  debtor  had  an  interest,  was  held  to  ho  limited  to 
the  property  of  debtors  who  had  the  power  of  charging  their 
property,  that  is,  to  lay  rectories,  advowsons  and  titiies,  and 
so  did  not  conflict  with  or  repeal  by  implication  the  13  KHz. 
c.  10,  which  makes  void  all  chargings  of  ecclesiastical 
property  in  ecclesiastical  hands  {a).  [So,  where  sec- 
tion seven  of  an  act  conferred  upon  a  married  woman  an 
absolute  power  to  dispose  of  her  separate  estate  by  will, 
apparently  even  to  the  exclusion  of  her  husband,  and  sec- 
tion nine  provided,  that  upon  her  failure  to  do  so,  her  estate 
should  be  distributed  in  certain  proportions  among  her 
children  and  her  husband,  as  the  consequence  of  intestacy  ; 
and  a  subsequent  act  provided,  "  that  the  power  of  any 
married  woman  to  bequeath  or  devise  her  property  by  will 
shall  be  restricted,  as  regards  the  husband,  to  the  same  ex- 
tent as  the  husband's  power  to  dispose  of  his  property  is 
restricted  as  regards  the  wife,"  etc.,  it  was  held  that,  as 
the  subject  of  the  latter  act  was  merely  the  case  of  the  hus- 
band of  a  deceased  wife  who  left  a  will,  it  did  not  repeal 
section  nine  of  the  former  act,  which  ascertained  the  mutual 
rights  of  husband  and  children  where  there  was  no  will.^] 

§  212.  The  Act  which  provides  one  course  of  proceeding 
for  the  habitual  neglect  to  send  a  child  to  school,  does  not 
conflict  with  a'liother  which  provides  a  different  mode  of 
proceeding  for  a  neglect  which  was  not  habitual  but  occa- 
sional only,  and  both  therefore  can  stand  (v).  The  55  Geo. 
3,  c.  137,  which  imposed  a  penalty  of  100/.,  recoverable  by 
the  common  informer  by  action,  on  any  pai'ish  oliicer  who, 
for   his   own    profit,  supplied  goods   for  the  use  of  a  work- 

Q.    B.     3,    S.    C.  ;    Hunt    v.    Gr.  McN. ;  Do  G.  &  G.  1,  11  24  L.  J. 

Northern   R.  Co..  10  C.  B.  900,  2  Cli.  332. 

L.    M.  &  P.  268    and  271  ;  Grant  »  Dickinson    v.     Dickinson,    61 

V.Ellis,  9   M.  &    W.    113;    Miin-  Pa.    St.    401.       See    also,  lor    an 

nins?  V.  Plielps,  10   Ex.  59,  24  L.  illustration    of      this       principle  : 

J.  6'2;  Harden  v.  Hesketh.  4  H.  &  Street  v.   Comm'rs,  6  Watts  &  S. 

K  175,  28  L.  J.  137.       Conip.  R.  (Pa.)  209. 

V.  Everett,  1  E.  &  B.  273,  22  L.  J.  (b)  Be  Murphy,  2  Q.  B.  D.  397. 

3;  Re  Knight,  1  Ex.  802.  See  another,  Exp.  Attwater,  5  Ch. 

{a)  Hawkins     v.    Gathercole,    6  D.  27. 


-284:  AVOIDANCE    OF    IMPLIKD    KEPKAL.  [§  i^l2 

house,  or  for  tlie  support  of  tlie  poor,  was  held  unaffected 
by  the  4  ife  5  Will.  4,  c.  7G,  s.  77,  which  inflicted  a  line  of 
51.,  recoverable  sunnnarily,  half  for  the  informer  and  half 
for  the  poor  rates,  on  any  such  officer  who  supplied  goods 
for  his  profit  to  an  individual  pauper  {a).  It  had  been 
decided  before  the  passing  of  the  later  Act  (which,  indeed, 
was  passed  in  consequence  of  that  decision),  that  the  earlier 
enactment  applied  only  to  a  supply  for  the  poor  generally, 
but  not  to  the  supply  of  an  individual  pauper  (d).  [So, 
where  an  act  forbade  the  issuing  of  land  warrants  except  for 
land  whereon  settlement  and  certain  improvements  had  been 
made  ;  and  a  subsequent  one  enacted,  that,  in  all  cases  where 
warrants  had  issued  under  said  act  and  surveys  been  made 
and  filed,  patents  should  issue  therefor  without  further  evi- 
dence of  settlement  and  improvement  than  that  upon  which 
the  warrant  was  granted,  it  was  held,  that,  as  the  onlj' 
object  of  the  act  was  to  make  the  original  proof  sufficient  to 
authorize  the  issuing  of  the  patent,  for  the  sake  of  conven- 
ience, and  to  obviate  certain  scruples  entertained  by  the  secre- 
tary of  the  land  office,  it  was  not  to  be  construed  as  repeal- 
ing by  implication  the  earlier  act,  or  to  establish  titles 
•obtained  in  fraud  of  it.*  The  Massachusetts  act  of  1862,  ch. 
198,  required  a  married  woman  engaging  in  business  on  her 
separate  account  to  tile  a  certain  certificate,  and  it  was  held, 
that  her  failure  to  do  so  subjected  her  earnings  in  the  busi- 
ness to  attachment  by  her  husband's  creditors;*  the  act  of 
1874,  ch.  184,  enlarged  the  powers  of  a  married  woman  as  to 
transfers  of  personal  and  real  estate,  contracts,  ownership  of 
the  earnings  of  her  work  and  labor,  suits,  right  to  act  as 
administratrix,  etc.,  but  did  not  touch  upon  the  subject  of 
her  rights  and  liabilities  when  carrying  on  business  on  her 
separate  account.  The  latter  act  was  consequently  licld  not 
to  repeal  the  former  by  implication,  ])oth  acts  being 
capable  of  standing  together,  each  as  the  governing  rule  in 
the  class  of  cases  to  which  it  applied.*     An  act  clothed  cer- 

(a)  Robinson  v.  Emerson,  4  IT.     (Pa.)  171. 

&  C.  302.  »  See  Dawes  v,  Rodier,  125  Mass. 

(b)  Proctor  v.   Manwaring,  3  B.      421. 

•&  A.  145.  6  Harned   v.    Gould,  126  Mass. 

*  Moyer  v.  Gross,  2  Pcnv.  &  W.      11. 


§213]  AVOIDANCE   OF    IMPLIED    RRPEAL.  285- 

tain  courts  with  power  to  decree  such  alteration  in  the  char- 
ters of  boroughs  as  mii^ht  be  needful  to  change  the  limits  of 
such,  upon  like  proceedings,  as  were  required  for  the  incor- 
poration of  boroughs ;  a  subsequent  act  directed  the  burgess 
and  councils  of  boroughs  incorporated  under  it,  upon  peti- 
tion of  not  less  than  twenty  freeholders,  owners  of  lots  in 
any  section  whereon  the  petitioners  and  others  might  reside^, 
adjacent  to  the  borough,  to  declare  by  ordinance  the  admis- 
sion of  such  territory  as  part  of  the  borough.  '•  This,"  says 
the  court,  "  provides  for  a  single  case,  and  upon  no  other 
conditions  have  the  borough  officers  anything  to  do  with 
changing  borough  limits.  To  hold  that  such  au  enactment 
repeals  a  prior  one  which  authorized  the  courts  to  decree 
needful  alterations  of  borough  limits,  whenever  expedient, 
would  be  against  all  precedents.'" 

§213.  [So  an  act  giving  to  non-resident  plaintiffs  the 
right  to  sue  before  justices  of  the  peace,  by  a  "  long " 
summons,  without  first  giving  security  for  costs,  was 
held  not  repealed  by  a  later  one  giving  them  the  right  to 
sue  by  a  "short"  summons  upon  giving  such  security.* 
So,  where 'a  general  act  regulating  the  granting  of  licenses 
for  the  sale  of  spirituous  liquors,  and  prescribing  penalties 
for  the  sale  of  such  without  license,  contained  a  provision 
that  it  should  not  be  held  to  authorize  the  sale  of  liquors  in 
any  municipality  having  special  prohibitory  laws,  it  was 
held  that  it  did  not,  by  implication,  repeal  the  penalty 
appointed  by  a  special  law  prohibiting  the  granting  of 
licenses  and  the  sale  of  liquors  in  a  certain  township  ;  the 
penalty  in  the  later  act  being  imposed  upon  the  sale  of 
liquors  absolutely,  whilst,  in  the  former,  it  was  imposed  upon 
the  sale  thereof  without  license,  and  it  being  hardly  correct 
to  say  of  one  who  sold  liquor  in  a  township  in  which  there 
could  be  no  license,  that  he  sold  without  license, — the  phrase 
implying  that  persons  might  be  licensed.'      And,    where 

■I  McFate's  App.,  l05Pa.  St.  323,  side"    in  an  act    relating    to    tlie 

336.       See    also    Maple    Lake    v.  organization   of    courts    does    not 

Wright  Co.,  13  Minn.  403.  necessarily   imply  that  the    judge 

8  Osborne  V.  Everitt.  103  Pa.  St.  directed  to    "preside"  must  have 

421.  associates  :  Smith  v.  People,  47  N. 

»'  Seifried   v.    Com'th,    101  Pa.  Y.  330. 
St.  200,  203.      But  the  word  "pre- 


2S6  AVOIDANCE    OF    IMPLIKD    KKI'KAL.  [§  214 

one  act  related  to  "  idle  persons,  wIkj,  not  having  visible 
means  of  support,  live  without  lawful  employment,"  and 
another  to  idle  and  disorderly  persons  who  neglect  lawful 
business  and  habitually  misspend  their  time  by  visiting 
liouses  of  ill -fame,  etc.,  it  was  held  that  there  could  be  no 
inconsistency  between  them,  so  as  to  make  one  impliedly 
repeal  the  other.'"] 

§  214.  So,  an  Act  which  imposes,  for  police  purposes,  a 
penalty  for  retailing  excisable  liquors  wiihout  a  magistrate's 
license,  would  not  be  affected  by  an  excise  Act  of  later  date, 
which,  after  imposing  a  duty  on  ]>ersons  licensed  by  ma- 
gistrates, provided  that  nothing  which  it  contained  should 
prohibit  a  person  duly  licensed  to  retail  beer,  from  carrying 
on  his  business  in  a  booth  or  tent,  at  a  fair  or  race  (a).  [An 
act  declaring  that  the  expense  of  publishing  notices  of  tax 
sales  in  certain  counties  shall  not  exceed  a  certain  sum  for 
each  paper  is  not  inconsistent  with  an  earlier  one  fixing  the 
price  for  such  publication,  the  latter  regulating  the  total, 
the  former  the  individual  figures."  A  statute  giving  certain 
counties  the  right  to  issue  bonds  in  aid  of  the  construction 
of  any  railroad  running  through  them,  upon  approval  by  a 
vote  of  the  majority  of  the  legal  voters  thereof,  was  not 
repealed  by  a  subsequent  act  giving  a  number  of  counties, 
including,  with  others,  those  of  the  counties  em'oraced  in  the 
former  act,  a  similar  authority  upon  a  vote  of  the  majority 
of  legal  voters  "and  a  majority  of  the  supervisors,"  it  being 
the  manifest  intention  of  the  Legislature  to  provide  for 
different  roads."  A  statute  imposing  the  penalty  of  a 
certain  fine  and  minimun  imprisonment  for  a  first  offence 
is  not  repealed  by  a  subsequent  statute  providing,  that,  on 
conviction  of  such  offence,  the  court  may,  in  its  discretion, 
impose  the  penalty  either  of  the  fine  or  the  imprisonment, 
where  the  offender  shall  prove,  to  the  satisfaction  of  the 
court,  that  he  has  not  been  before    convicted  of  a  similar 

'"  Com'th  V.  Norton,  13  Allen  854,  34  L.  J.  43 ;  nnd  Asli  v. 
(Mass.)  550.  Lvnn,  L.  R.  1  Q.  B.  270. 

(«)  U.  V.  Hanson.  4B.  &  A.  519;  "  Crouch  v.  Hayes,  98  N.  Y. 
R.  V.  Downes,  3  T.  li.    5G0.      See      183. 

Buckle  V.    Wrigbtson,  5  B.  &  S.         i'^  Red  Rock  v.  Heury,  106  U.  S. 

596. 


•§§  215,  216]        AVOIDANCE    OF    IMPLIED  REPEAL.  287 

offence,  and  repealing  all  inconsistent  acts, — the  latter  act 
applying  only  to  cases  where  this  is  done."  And  a  statute 
prescribing  and  regulating  the  method  of  assessing  taxes, 
and  containing  a  general  repeal  of  all  laws  relating  to  the 
subject,  would  not,  upon  the  same  principle,  repeal  another 
providing  a  remedy  for  an  illegal  tax." 

§  215.  Modification  to  Escape  Repeal.  Exceptions. — [In- 
consistency between  two  statutes,  or  statutory  provisions, 
in  order  to  avoid  a  repeal  by  ini])lication,  is  sometimes  so 
treated  that  the  later  statute  or  provision  is  regarded  as 
modifying  the  earlier  in  some  particular  respect,  or 
taking  certain  things  out  of  its  operation,''  as  an  exception 
to  it.'*  Thus,  in  Alabama,  before  1852,  there  was  a  statute 
in  force  fixing  the  salary  of  the  quartermaster-general  at 
$200.  In  that  year  an  act  was  passed  mak"iig  his  com- 
pensation $4  a  day  while  in  the  execution  of  his  duty  and 
repealing  the  former  statute.  The  general  appropriation 
act,  passed  later  at  the  same  session,  however,  appropriated 
the  sum  of  $200  per  annum  for  two  years  to  be  paid  to  the 
quartermaster-general.  It  was  held  that  the  effect  of  this 
legislation  was  to  modify  the  operation  of  the  act  of  1852, 
by  postponing  it  for  two  years,  during  which  the  officer  was 
entitled  to  receive  the  sum  specifically  appropriated.'' 

§  216.  [Upon  the  ground  of  clearly  expressed  intention,  it 
is  obvious,  that  the  terms  of  a  later  special  act  must  control 


'2  Dolan  V.    Thomas,    12  Allen  year  ending    September    30,    llie 

(Mass.)  421.  appropriation  was  continued  to  Jan- 

'*  Shear  v.    Columbia,  14  Fla.  uary  1,  succeeding;  it  was  declared 

146.  that    these    appropriations  should 

i^Wilb.,   p.   320.     Comp.    §240  not  be  coustruod  to  be  in  addition 

and  note  123.  to  appropriations  for  the  same  pur- 

"  Exp.  Turner,  24  S.  C.  211,  214,  poses  made  by  any  other  laws  :  it 

as  where  one  act  requires  all  wills  was    held    that   the    officer    could 

to  be  in  writing,  and  a  later  per-  draw,    during    the  2    years,    only 

mits  nuncupative  wills  of  a  cer-  $l,5U0annuulsalar}'-,  Brickell.C.  J., 

tain  kind,  etc.  holding  that  the  appropriation  act 

n  Kiggs  V.  Pfister,  21  Ala.  469.  repealed  the  general  law;  Manning, 

In  Riggs  V.  Brewer,  64  Id.  282,  the  J.,  that  it  suspended  the  operation 

facts  w'cre  these  :   an  act  fixed  the  of   the    general    law,    leaving  the 

annual  salary'  of  an  officer  at  $2,000;  residue  of  the  salary  fixed  by  it  to 

the  appropriation  bill  appropriated  be  provided  for  by  a  future  appro- 

for  2  years,   |1,500  in  each  year,  priation.      Comp.  State  v.  Bishop, 

in  all  $3,000  for  his  pay;  the  fiscal  41  Mo.  16,  ante,  §  45. 


288  AVOIDANCE  OF  IMI'LIED  KLPKAL.  [§  216^ 

those  of  a  prior  general  une  ;'"  and  that  where  thcj  are  posi- 
tively repugnant,  not  niei-elj  cumulative  or  auxiliary',  the  for- 
mer must  repeal  the  latter  to  the  extent  of  such  repugnancy 
and  within  the  limits  assigned  to  the  operation  of  the  special 
law."  And  so,  where  there  are,  in  an  act,  specific  provisions 
relating  to  a  particular  subject,  they  must  govern,  in  jcspect 
of  that  subject,  as  against  general  provisions  in  other  parts 
of  the  statute,  although  the  latter,  standing  alone,  would  be 
broad  enough  to  include  the  subject  to  which  ilie  more 
particular  provisions  relate.*"  As,  however,  mere  particular 
expressions  will  not  l)e  allowed  entirely  to  exclude  a  more 
general  intent,  cheaply  manifested  by  a  statute,"  so  the  effect 
of  particular  provisions  upon  more  general  ones  ovei'lapping 
them  must  also  be  a  question  of  legislative  intention.  This 
intention  is  often  best  served  by  permitting  the  subject-mat- 
ter of  the  particular  provision  to  stand  side  by  side  with  that 
of  the  general  provision,  in  obedience  to  the  rule :]  Where  a 
general  intention  is  expressed,  and  also  a  particular  intention 
which  is  incompatible  with  the  general  one,  the  particulai-  in- 
tention shall  be  considered  an  exception  to  the  general  onc(<:^), 
[According  to  a  familiar,  every-day  maxim,  an  exception  is 
not  a  negntion  of  a  general  rule.  At  least,  it  is  so  onl}-  to  the 
extent  of  the  exception  ;"  and  if  a  statute  recognizes  the  ex- 
istence of  the  general  laws,  and  creates  an  exception  from 
them,  it  cannot  be  deemed  repugnant  to  the  former  so  as  to 
repeal  it."'  Hence,  if  there  are  two  acts,  or  two  provisions  in 
the  same   act,  of   which   one   is  special  and   particular,  and 

18  Townscnd  v.  Little,  109  U.  S.  county,     a     general     act    already 

504  ;  and  see  Burke  v.  Jeffries,  20  repealed  by  another  general  act,  is 

Iowa,  145  ;   Crane  v.    Reeder,    22  ■wholly  nugatorj--:  Reed's  App.,  114 

3Iich.  3-2'3.     Sec  Adflevda.  Pa.  St.  453. 

■9  Slate  V.  Kelly,  34  N.  J.  L.  75;  ^o  YcM    v.    Felt,    19   Wis.    193  ; 

McGavish  v.  State,  Id.  501  ;  Isham  State  v.  Goetze,  23  Id.  068. 

V.  Iron  Co.,  19  Vt.  230;   and  see  «i  See  Williams  v.    McDonal.  4 

Titcomb  v.  Ins.  Co.,  8  Mass.  327.  Cband.  (Wis.)  (55,  andante,  §  111, 

But  comp.    State  v.  Douglass,  33  and  cases  there  cited. 

N.  J.  L.  303  ;  Com'tb  v.  Pointer.  5  (a)  Per  Best,  O.  J.,  in  CburcliilJ 

Bush  (Ky.)  301.      It  has  been  said  v.   Crease,  5  Bing.  180.     And  pee 

that  a  section  in  a  private  act  can-  ex.  gr.  Piikington  v.  Cooke,  10  M. 

not,  by  implication,  repeal  a  pro-  &  W.  615;  Taylor  v.  Oldham,  4 

vision  of  the  common  law  or  of  a  Ch.  D.  395,  46  L.  J.  105.     [Bish., 

public  statute  :  The  Clan  Gordon,  Wr.    L.    §   156,   and    cases    there 

L.    R.    7    P.    Div.     190.     At    all  cited.] 

events,  a  local  act  the  purpose  of  ^^  Exp.  Smith,  40  Cal.  419. 

which  is  to  repeal,  as  to  a  particular  ^^  Ibid. 


§  216J  AVOIDANCE  OF  IMPLIED  REPEAL.  289" 

clearly  includes  the  matter  in  controversy,  whilst  the  other 
is  general  and  would,  if  standing  alone,  include  it  also  ;  and 
if,  reading  the  geperal  provision  side  by  side  with  the  par- 
ticular one,  the  inclusion  of  that  matter  in  the  former  would 
produce  a  conflict  between  it  and  the  special  provision,— it 
must  be  taken  that  the  latter  was  designed  as  an  exception^ 
to  the  general  provision;'*  as,  where  an  incorporation  law 
contains  provisions  regulating  the  bringing  of  actions  against 
corporations  created  under  it,  at  variance  with  earlier  provis- 
ions upon  the  subject  of  suits  against  corporations  generally." 
So,  where  an  act,  making  the  term  of  office  of  revenue  com- 
missioners four  years,  and  on  the  same  day  upon  which  cer- 
tain amendments  to  the  act,  not,  however,  changing  that 
term,  were  passed,  the  charter  of  a  city  was  amended  so  as 
to  make  the  term  of  office  of  its  revenue  commissioners  two 
years,  it  was  held  that  this  enactment  constituted  a  special 
exception  to  the  general  law."  So  the  minute  and  particular 
provisions  of  one  act  prescribing  the  salary  of  the  register 
of  voters  in  New  Orleans  was  held  unaffected  by  a  general 
power  given  by  another  act  approved  the  same  day  to  the 
common  councils  in  relation  to  all  city  salaries."  As  another 
instance  of  this  construction  may  be  cited  the  following 
ease:  A  local  act,  of  January  16,  1849,  provided  that  the 
auditor  of  a  certain  county  should  receive  $700  per  annum 
in  full  for  his  official  services  as  such  ;  that  he  should  make 
semi-annual  returns  to  the  county  board  of  all  fees  ana 
emohiments  received  by  him  ;  and  that  the  board  should 
allow  him  $350  out  of  the  county  treasury.  A  general  act 
passed  January  IT,  1849,  "  to  increase  and  extend  the  beneflts 
of  common  schools,"  required  county  auditors  to  perform 
certain  duties  before  belonging  to  the  school  commissioner, 
and  as  compensation  gave  them  one-half  of  one  per  centum 
on  the  amount  of  school  funds  on  loan  in  their  respective 
counties.  It  was  held  that  the  two  acts  were  to  be  con- 
strued, as  if  constituing  one  act  to  the  effect,  that,  for  ser- 

"  Crane  v.  Reeder,  23  Mich.  322.  and    see  supra,   g  215  ;    State  v. 

»  Dewey  v.  Ceiitr.  Car,  etc.,  Co.,  Trenton,  38  JS.  J.  L.  64. 

43  Mich.    399.      Comp.    Casey   v.  "  St.  Martin  v.  JSew  Orleans,  14. 

Earned,  5  Iowa,  1.  La.  An.  113. 

'•*«  Branbani  v.  Long,  78  Va.  353; 

19 


290  AVOIDANCE  OF   IMPLIED  REPEAL.  [§  216 

vices  relative  to  the  school  fund,  county  auditors  should 
receive  one-lialf  of  one  per  centum  on  the  amount  of  school 
funds,  etc.,  provided  that  the  auditor  of  the  particular 
<iounty  referred  to  in  the  act  of  January  16,  should  not  be 
•nllowed  such  percentage  in  addition  to  his  fixed  salary  of 
$700."]  Even  when  the  later,  or  later  part  of  the  enactment 
is  in  the  negative,  it  is  sometimes  reconcilable  with  the  earlier 
one  by  so  treating  it.  If,  for  instance,  an  act  in  one  sec- 
tion authorized  a  corporation  to  sell  a  particular  piece  of 
land,  and  in  another  prohibited  it  to  sell  "  any  land,"  the  first 
section  would  be  treated  not  as  repealed  b}'  the  sweeping 
terms  of  the  other,  but  as  an  exception  to  it  (a).  [Thus,  in 
an  act  giving  a  charter  to  a  city,  section  83  provided  a 
specific  and  detailed  remedy  for  the  collection  of  assessments, 
and  declared  the  provision  applicable  to  the  collection  of  those 
due  and  unpaid  at  the  passage  of  the  act;  section  109,  how- 
ever, provided  that  "nothing  in  said  act  contained  shall  be 
construed  to  destroy,  impair,  or  take  away  any  right  or  rem- 
edy acquired  or  given  by  any  act"  repealed  by  this  statute. 
It  was  held,  nevertheless,  that  the  provisions  of  section  83 
applied  to  the  collection  of  assessments  due  and  unpaid  at 
the  time  of  the  passage  of  the  act,  because  it  was  a  specific 
provision  on  the  subject  and  would  otherwise  be  nullified, 
and  that  section  109  applied  only  to  preserve  contract  rights 
against  the  city."]  In  tliis  manner  two  acts  passed  in  1833 
were  construed  as  reconcilable.  The  3  and  4  Will.  4,  c.  27, 
s.  42,  which  ])rovided  that  no  action  for  rent,  or  for  interest 
on  money  charged  on  land  shall  be  brought  after  six  years, 
and  the  3  &  4  Will.  4,  c.  42,  passed  three  weeks  later,  which 
provided  that  no  action  for  rent  reserved  by  lease  under  seal, 
or  for  money  secured  by  bond  or  other  specialty,  should  be 
Ijrought  after  twenty  years,  were  construed  as  reconcilable, 
by  holding  that  the  later  enactment  was  an  exception  out  of 

^^  La  Grange  Co.    v.    Cutler,    6  part  of  an  act,  to  a  purpose  dis- 

Ind.  354.  closed   by  a  comparison   of  other 

(^0  Per  Itomilly,  M.   R.,  in   De  portions    thereof:  see  ante,  ^  37; 

"Winton  v.   jjrecon,  28  L.   J.    Ch.  nnd    the    consfruction   also    flows 

■000.  from  the  iii)p!ieaiion  or    the  prin- 

'■''  State  V.  Trenton,  38  N.  J.  L.  ciplo  Expre>sio  unius  est  exelusio 

64.     This  was,  in  effect,  a  restric-  alterius,  in  its  proper  sigaiticauce : 

tion  of  the  general  language  of  one  sew  post,  §§  397-399. 


§  217]         AVOIDANCE  OF  IMPLIED  ERPEAL.  291 

the  former.  And  the  effect  of  the  conjoined  enactments 
was  that  no  more  than  six  years'  arrears  of  rent  or  interest 
were  recoverable,  except  where  they  were  secured  by  cove- 
nant or  other  specialty,  in  which  case  twenty  years'  arrears 
were  recoverable  («).  [Similarly,  the  provision  in  an  eai'lier 
act  that  the  omission  of  the  holder  of  a  certificate  of  pur- 
chase nnder  a  tax  sale  to  give  notice  might  extend  the 
period  of  redemption  beyond  two  years,  was  held  unaffected 
by  a  subsequent  statute  limiting,  in  general,  the  period  of 
redemption  to  two  years.^°] 

§  217.  Negative  Statutes  AflSrmative  Inter  se. — It  may  be 
observed,  also,  that  two  statutes  expressed  in  negative  terms 
may  be  affirmative  inter  se,  and  not  contradictory,  though 
negative  as  regards  a  third  at  which  they  are  avowedly  aimed. 
They  may  make  two  holes  in  the  earlier  act,  which  can 
stand  side  by  side  without  merging  into  one  {b).  [So,  a 
statute  having  provided  that  persons  living  within  one  mile 
of  a  toll-gate  should  pay  only  half  toll, — a  second,  that  the 
first  should  not  apply  to  persons  engaged  in  transporting 
goods  for  others, — a  third,  not  mentioning  the  second,  that 
the  first  should  read  "  except  persons  residing  in  a  city  or 
incorporated  village," — it  was  held  that  the  second  act 
remained  in  force,  the  effect  of  the  whole  being  that  persons 
living  within  a  mile  of  the  gate,  engaged  in  transporting  for 
others,  were  liable  to  pay  full  toll,  though  not  residiug  in 
any  city  or  incorporated  village.'*]  The  12  Anne,  st.  2,  c. 
16,  having  made  void  all  loans  at  more  than  five  per  cent., 
the  3  &  4  Will.  4,  c.  98,  enacted  that  "  no"  bill  or  note 
payable  at  three  months  or  less  should  be  void  for  usury  ; 
and  the  2  &  3  Vict.  c.  37,  that  "  no  "  bill  or  note  payable 
at  twelve  months  or  less  should  be  void  on  that  ground,  but 

(a)  Hunter  v.  Nockolds,  1   Mc-  istration     of     assets.     Talbot,     v. 

N.  &  Gord,  640,  Paget  v.  Foley,  2  Shrewsbury,  L.  K.  16  Eq.  26,  42 

Bing   N.  C.  679  ;  Sims  v.  Thomas,  L.  J.  877  ;  Be  Hastings,  6  Ch.  D. 

12  A.  &  E.  535  ;  Humfrey  v.  Gery,  610,  47  L.  J.  137. 

7  C   B.  567.     See  also  Cobham  v.  ^^  Gaston  v.  Merriam,  33  Minn. 

Dalton.    L.   R.    10    Ch.    655;    Re  271. 

Deere,  Id.;  Richens  v.  Wiggins,  3  (b)   Per  Maule,  J.,  in   Clack  v. 

B    &  S.  953,  32  L.  J.  144.     Comp.  Sainsbury,  11  C.  B.  695,  2  L.  M.  & 

Round     V.     Bell.    30    Beav.     121.  P   627,  631. 

Rent  is  a  specialty  debt  within  the  ^'  Canustata,  etc., Co.  v.  Parkhill, 

32  &  33  Vict.  c.  46,  in  the  admin-  50  Barb.  (N.  Y.)  601. 


292  AVOIDANCE  OF  IMPLIED  KEPEAL.  [§  218- 

witli  the  additional  provision  that  the  act  was  not  to  apply 
to  loans  on  real  security ;  and  it  was  held  that  the  last-men- 
tioned act  did  not  repeal  the  3  &  4  Will.  4.  The  negative 
words,  in  which  both  were  expressed,  had  reference  to  the 
Act  of  Anne  ;  but  inter  se,  they  were  aflSnnative  statutes,, 
and  the  proviso  of  the  later  one,  therefore,  did  not  affect  the 
short  loans  dealt  with  by  the  Act  of  William  iv.  {a). 

§  218.  statutes  without  Expressed  or  Implied  Negative. — Fur- 
ther, it  is  laid  down  generally,  that  wlien  the  later  enact- 
ment is  worded  in  affirmative  terms  only,  without  any  nega- 
tive expressed  or  implied,  it  does  not  repeal  the  earlier  law 
(J)).  Thus,  an  act  which  authorized  the  Quarter  Sessions 
to  try  a  certain  offence,  would  involve  no  inconsistency  with 
an  earlier  one  which  enacted  that  the  offence  should  be  tried 
by  the  Queen's  Bench  or  the  Assizes  ;  {c)  [nor  an  act  author- 
izing a  proceeding  to  contest  the  validity  of  a  will,  by  peti- 
tion to  the  court  of  common  pleas,  any  inconsistency  with  an 
earlier  one  providing  for  a  proceeding  by  bill  in  chancery;'"' 
and  in  neither  case,  therefore,  would*  the  later  repeal  the 
prior  law,"]  So,  an  act  which  imposes  a  liability  on  certain 
persons  to  repair  a  road,  would  not  be  construed  as  impliedly 
exonerating  the  parish  from  its  common  law  duty  to  do 
so  {(T).  [Nor  does  an  act  empowering  the  court  to  order  the 
children  of  indigent  persons  imable  to  work,  to  support 
them,  relieve  the  poor  district  in  which  such  paupers  may  be 
found  from  its  duty  to  provide  for  them  until  they  can  be 
removed  to   the   place  of  their  last  settlement."]       A  local 

(a)  Clack  v.  Sainsbury,  ubi  sup.;  453  ;  DcPauw  v.  New  Albnny,  25 

Nixon  V.  Phillips,  7  Ex.  Ib8,  21  L.  Ind.  204  ;  Bhiin  v.  Builey,  25  Id. 

,J   88  ;  Exp.  Warrington,  3  De  G.  105  ;    Brown   v.    IMilicr,    4    J.    J. 

M.  &  G.  159,  23  L.  J.,  Bank.  33.  J\Iursb.  (Ivy.)  474  ;  Elliott  v.  Locli- 

{h)  Co.   Litt.    115a,   Anou.   Lolft,  name,  1  Knn.  12G  ;  McLaughlin  v. 

405  ;  ]\Iuir  v.  Ilore,  47  L.  J.  i\I.  C.  Hoover,  1  Greg.  31  ;  Cate  v.  State, 

17.     [See,  also.  "Williams  v.  Potter,  3  Snced  (Tenn.)  120 

2    Barb.    (N.    Y.)  310  ;    Bruse  v.  (c)  Co.  Litt.  115a,  3  Inst.  200. 

Schuyler,    9   111.    221  ;   Mullen     v.  ^i  Paudebaugh  v.  Shelly,  6  Ohia 

People,  31  Id.  444  ;  Anient  v.  Hum-  St.  307. 

phrey,  3  Gr.  (la.)  255  ;  Planters'  B'k  ^^  ^^,^.  .^\^q   jmte^  §  151. 

V.  State,   14  Miss.  028  ;  "White  v.  (d)  K.    v.    St.  George's   Hanover 

Johnson,    23    Id.     08  ;    Street    v.  Square,  3  Camp.  222;  K.  v.  South- 

Com'th,  0  "Watts  &  S.   (Pa.)  209  ;  hampton,  22  L.  J.  M.  C.  201;  Gib- 

Shinn   v.    Com'fh.    3    Grant  (Pa.)  son  v.  Preston,  L.  II.  5  Q.  B.  219. 

205;  Nixon  v.  Piffet,  16  La.    An.  2^  Kelly  v.  Union  'I'p..  5    Watts,. 

879  ;  Atty-Gen.  v.  Brown,  1  "Wis.  &  S.  (Pa.)  536. 
513;   Stale    v.  Macon  Co.,  41  Mo. 


§  218]  AVOIDANCE  OF  IMPLIED  REPEAL.  208 

act,  iu  directing  that  the  chimneys  of  buildings  should  be 
built  of  such  materials  as  the  corporation  approved,  did  not 
affect  the  provisions  of  the  earlier  general  act  (3  &  4  Vict. 
c.  85,  s.  G),  which  required  that  chimneys  should  be  built  of 
stone  or  brick  (a).  A  bye-law  made  under  the  T-ith  section 
of  the  Education  Act,  requiring  children  to  attend  school  as 
long  as  it  was  open,  (which  was  at  least  thirty  hours  in  the 
•week,)  did  not  repeal  the  provision  in  the  Workshops  Regu- 
lation Act  of  18G9,  which  requires  that  children  under  thir- 
teen employed  in  a  workshop  shall  be  sent  to  school  for  at 
least  ten  hours  weekly  {b).  [Where  an  act  exempted  to  the 
widow  and  children  of  a  decedent  dying  testate  or  intestate 
the  same  property,  which,  by  laws  then  in  force,  was 
exempted  from  execution,  and  a  subsequent  act  repealed  the 
law  making  an  exemption  of  property  of  a  certain  value 
from  execution,  specified  certain  property  which  should  be 
held  exempt,  and  reserved  the  same  articles  for  the  benefit 
of  the  widow  of  any  person  dying  intestate,  it  was  held  that 
this  act  did  not  repeal  the  one  first  mentioned,  the  exemp- 
tion in  favor  of  the  widow,  etc.,  of  one  dying  intestate  not 
being  in  conflict  with  a  similar  exemption  in  the  case  of  one 
dying  testate.'^  Nor  was  an  act  authorizing  the  ti-ansfer  of 
certain  money  from  the  railroad  and  sinking  fund  to  the 
county  school  fund,  held  repealed  by  a  later  one  authoriz- 
inir  the  transfer  of  surplus  moneys  by  county  commissioners 
from  one  fund  to  another.'"]  An  act  which  provided  that 
if  a  person  suffered  bodily  injury  from  the  neglect  of  a  mill- 
owner  to  fence  dangerous  machinery,  after  notice  to  do  so 
from  a  factory  inspector,  the  mill-owner  should  be  liable  to  a 
penalty,  recoverable  by  the  inspector,  and  applicable  to  the 
party  injured,  or  otherwise,  as  the  home  secretary  should 
determine,  would  not  affect  the  common  law  right  of  the 
injured  party  to  sue  for  damages  for  the  injury  (c).  [And, 
in  general,  "an  act  which  gives  cumulative  and  not  incon- 
sistent remedies,  and  especially  one   which   embraces  cases 

(a)  Hill  V.  Hall,  1  Ex.  D.  411.  ^e  gtate  v.   Storey  Co.,  17  Nev. 

(5)  SO  &  31    Vict.  c.  146,  s.   24;  96. 

Berry  v.    Cherrvlioliii,    1    Ex.   D.  (c)  1    Vict.    c.    15:    Caswell    v. 

4.-,7.                      ■'  Worth,  5  E.  &  B.  894.  See  Amber- 

35' Graves   v.  Graves,  10  B.  Men.  fcate  R.  Co,  v.  Midl^d  R.  Co.,  2 

<l^y.)  Ul.  B.  &  B.  793. 


294  AVOIDANCE  OF  IMPLIED  REPEAL.         [§  219 

not  covered  by  the  former  lei^islatiou.  docs  not  repeal  jjrior 
statutes  upon  the  same  subject-matter.""]  A  bond  by  a  col- 
lector, with  one  surety,  good  uuder  the  ordinary  law,  would 
not  be  deemed  invalid  because  the  act  which  required  it 
enacted  tliat  the  collector  should  give  good  security  by  a 
joint  and  several  bond  with  two  sureties  at  least ;  {a)  [nor  a 
promissory  note  given  to  secure  the  rent  of  a  public  bridge 
by  an  act  providing  that  a  bond  should  be  given  for  that 
jiurpose.'*] 

§  219.  The  30  &  31  Yict.  c.  142,  which  authorizes  a  judge 
of  the  Superior  Court  in  which  an  action  is  brought,  to 
send  the  case  for  trial  to  a  County  Court,  was  construed  as 
not  impliedly  repealing  the  earlier  enactment  of  11  Geo.  4, 
c.  70,  which  authorizes  any  judge  of  the  Superior  Courts  to 
transact  the  chamber  business  of  the  other  Courts  as  well  as 
his  own ;  but  the  later  Act  was  read  with  the  earlier,  and 
the  expression  "  Judge  of  the  Court  in  which  the  action 
was  brought,"  was  thus  construed  as  equivalent  to  any 
judge  of  any  of  the  Superior  Courts  of  law  {h).  The  55 
Geo.  3,  c.  184,  s.  52,  which  directed  that  all  affidavits 
required  by  existing  or  future  Acts  for  the  verification  of 
accounts  should,  unless  when  otherwise  expressly  pro- 
vided, be  made  before  the  Commissioners  of  Stamps,  was 
held  unaffected  by  the  9  Geo.  4,  c.  23,  which  Empowered 
justices  of  tlie  peace  to  administer  the  oath  in  similar  cases. 
Although  the  later  Act  did  "  otherwise  provide,"  it  did  not 
make  the  provision  inconsistent  with   the  earlier  Act  (c)^ 

"  Sedgw.,    p.     100,     note,    fit.  through  any  wilful  act  or  omission,. 

Waldo    V.   Bell,    13    La.  An.  329;  responsible  in  exemplary  damages 

Mitchell    V.  Duncan,    7    Fla.    13;  to   the  survrving  husband,  widow 

Raudebaugh   v.  Shelly,  6  Ohio  St.  or  heirsof  the  decedent.     Compare 

307;  State  v.    Berry,  13   Iowa,  58;  to  similar  effect  as  to  action  of  a 

Wilson  V.  Shorrick,  21  Id.  332.  See  constitutional     provision    upon    a 

also  Gohen  v.  R.  R.  Co.,  2  Woods,  prior  act     in     pari     materia,     I/i 

346,  that  a  statute  giving  a  right  of  re  Cont.  Election    of    Barber,    86 

action  for  compensatory  damages  Pa.  St.  392. 

to  the  surviving  husband,    wife,  (a)  Pcppin  v.  Cooper,  2  B.  &  A. 
child,    or    parents    of    any  person  431.     See    Austen   v.    Howard,   7 
■whose  life  is  lost  by  the  negligence,  Taunt.  28,  237. 
etc.,  of  any  railroad  company,  etc.,  ^^  Centr.  B'k  v.  Kendrick,  Dud- 
is  not  abrogated  by  a  subsequent  ley  (Ga.)  GO. 

constitutional    provision     making  (b)  Owens  v.  Woosman,  L.  R.C.. 

every    person,    corporation,    etc.,  C.  95,  3  Q.  B.  469. 

that     may    commit     a   homicide  (c)  R.  v.  Greenland,  R.  L.  1. 


§  220]  AVOIDANCE  OF  IMPLIED    KEPEAL.  295 

Where  one  Bankruptcy  Act  empowered  the  Court  to  make 
the  bankrupt  an  allowance,  and  a  later  one  enacted  that  the 
creditors  should  determine  whether  any  and  what  allowance 
should  be  made  to  him,  it  was  held  that  the  former  power 
was  still  in  force  when  the  creditors  did  not  exercise  that 
given  them  by  the  hitter  Act  {a).  [So,  two  sections  of  an 
act  defining  the  degrees  of  murder,  the  third  p/roviding  that 
the  degree  of  murder  should  be  found  by  the  jury,  were 
held  to  apply  to  cases  in  which  the  accused  pleaded  guilty."] 

§  220.  "Where  a  power  was  given  by  a  local  Act  to 
Commissioners  to  make  drains  through  private  lands,  after 
giving  twenty-eight  days'  public  notice,  with  power  to  the 
persons  interested  to  appeal  ;  and  the  subsequently  passed 
Nuisances  Removal  Act  of  1855  gave  the  same  power  to 
the  same  Connnissioners,  without  requiring  notice,  it  was- 
held  that  they  were  at  liberty  to  act  under  either  statute. 
The  notice  was  not  a  right  given  to  the  parties  interested, 
but  a  mere  restriction  ;  and  there  was  no  more  inconsistency 
in  the  co-existence  of  the  two  powers,  than  in  the  co- exis- 
tence of  the  ordinary  covenants  in  a  lease  to  repair  simply^ 
and  to  repair  after  a  month's  notice  {b).  [Where,  indeed, 
an  act  takes  away  no  right  conferred  by  a  former  act,  nor 
imposes  any  substantially  new  duty,  but  regulates,  with 
additional  requirements,  a  duty  imposed  by  the  former  act, 
e.  g.^  adding  to  the  duty  imposed  upon  railroads  to  construct 
fences,  that  of  constructing  gates,  along  the  line  of  the 
road,  there  is  said  to  be  no  inconsistency  between  the  two.** 
Thus,  where  an  act,  passed  in  1861,  authorized  the  councils 
of  a  city  to  improve  streets  and  levy  the  cost  on  owners  of 
property  thereon,  but  provided  that  such  improvement 
should  not  be  ordained  except  on  the  petition  of  a  majority 
of  the  property  owners  on  the  street  to  be  improved  ;  and 
a  later  act,  passed  in  1864,  gave  councils  power  to  ordain 

(a)  Exp.  EUerton,  33  L.  J.  Bank.  App.  Dec.    (N.  Y.)  287.     Such  a 

33.  provision  is  said  to  be  not  a  mere 

'*  Green  v.    Com'tb,    13    Allen,  regulation      respecting      division 

(Mass.)  155.  fences  between  land  o\vn(?rs,  but  a 

(^) Derby  V.  Bury  Commissioners,  police  regulation  for  the  safety  of 
L.  It.  4  Ex.  233;  comp.,  however,  the  public,  and  entitled  to  an  ex- 
such  cases  as  Cumberland  v.  Cope-  tended  application:  lb.;  Corwin  v. 
land,  1  H.  &  C.  194.  inf.  R.  K.  Co.,  13  N.  Y.  42,  53. 

*o  Stoats  V.    R.  R.  Co.,   4  Abb. 


296  AVOIDANCE  OF  IMPLIED  KEPEAL,  [§  221 

improvements  by  a  two-tliirds  vote,  without  such  petition, — 
it  was  held  that  the  act  did  not  repeal  tlie  former,  but  the 
two  statutes,  standing  together,  had  tlie  effect  of  giving  two 
modes  bj  wliich  streets  could  be  improved  :  first,  upon 
petition  of  a  majority  of  the  property  owners  on  the  street 
to  be  improved  ;  and  second,  without  such  petition,  by  a 
two-thirds  vote  of  councils.'"  But  w'hen  a  still  later  act, 
passed  in  1868,  declared  that  councils  could  improve  when- 
ever a  majority  of  owners,  etc.,  should  petition,  "  and  not 
otherwise,"  except  when  the  ordinance  for  the  improve- 
ment should  order  the  payment  thereof  from  the  city  funds, 
this  act  was  said  to  repeal  that  of  lS6-i  upon  the  subject, 
"unless,  perhaps,  where  the  exception  applied.""  It  did 
not,  however,  repeal  a  provision  of  the  act  of  1861  that,  if 
notice  were  given  by  publication,  etc.,  of  the  improvement 
peticioned  for,  the  question  whether  a  majority  of  owners 
had  petitioned  should  cease  after  the  passage  of  the  ordi- 
nance providing  for  the  improvement,  i.  e.,  making  the 
same  conclusive  thereon  ;  nor  the  pi'ovision  of  that  act  for 
the  assessment  of  the  cost  on  the  owners."] 

§  221.  Where  an  Act  imposed  a  duty  of  thirty-five 
shillings  on  the  transfer  of  a  mortgage,  and  a  second  pro- 
vided that  when  the  transfer  was  made  by  several  deeds, 
only  five  shillings  should  be  charged  on  all  but  the  first, 
and  a  third  Act  repealed  the  first  by  imposing  a  stamp  of 
sixpence  per  1001.,  it  was  held  that  the  second  Act  was  not 
impliedly  repealed  by  the  third  {a).  [So,  an  act  imposed  a 
penalty  on  the  issuing  of  a  marriage  license  to  a  minor  ;  an 
amendment  to  the  act  legalized  such  issuing  upon  the  aftida- 
vit  of  the  minor  and  his  personal  appearance  indicating  full 
age,  and  the  former  provision  was  expressly  repealed,  sav- 
ing, however,  liabilities  incurred  by  breach  of  it  prior  to 
the  amendment ;  a  later  act  provided,  that,  in  all  suits  there- 
after to  be  brought  under  the  first  act  as  amended,  the  con- 
sent of  the  parent  or  guardian  of  the  minor  should  be  a 
defense,,  and  repealed  all  laws  in  conflict  with  its  own  pro- 

•"  Erie  v.  Bootz,  72  Pa.  St.  19G.  (a)  Foley    v.    Coramissioncrs  of 

*■'  Ibid,  at  p.  200.  Inland  Revenue,  3  Ex.  263. 

«  Ibid. 


!§  222]  AVOIDANCE  OF  IMPLIED  REPEAL.  297 

visiona :  it  was  lield  that  the  saving  clause  in  the  amend- 
ment remained  unrepealed/*]  The  Acts  43  Eliz.  e.  6,  21 
Jac.  c.  16,  and  22  and  23  Car.  2,  c.  9,  having  provided  that 
a  plaintiff  in  an  action  for  slander,  who  recovered  less  than 
forty  shillings  damages,  was  to  be  entitled  only  to  as  much 
costs  as  the  damages  amounted  to;  the  3  &  4  Vict.  c.  24, 
after  expressly  repealing  the  lirst  and  third  of  those  Acts, 
without  mentioning  the  second,  enacted  that  a  plaintiff 
who,  in  such  cases,  recovered  less  damage  than  forty  shill- 
ings, should  not  be  entitled  to  any  costs,  unless  the  presid- 
ing judge  certified  that  the  slander  was  malicious  ;  and  it 
was  held  that  this  later  enactment  did  not  impliedly  repeal 
the  2i  Jac.  c.  16,  and  that  the  effect  of  the  judge's  certifi- 
'Cate  was  merely  to  retnit  the  plaintiff  to  the  rights  which 
that  statute  gave  him  {a). 

§  222.  Acts  merely  Giving  Direction  and  Application  to  Old 
Law.— [It  is  also  said  that  the  rule.  Leges  posteriores  priores 
contrarias  abrogant,  is  inapplicable  in  the  construction  of  a 
new  law  simply  giving  application  and  direction  to  the 
prior  lave  ;"  so  that  an  act  providing  for  the  organization  of 
■^counties  into  municipal  townships,  though  declaring  an 
earlier  act  upon  the  same  subject,  and  largely  re-enacted 
by  the  hiter  one,  repealed,  \vas  construed  as  a  continuation 
thereof,  and  not  as  avoiding  any  proceedings  begun  there- 
under." But  a  later  statute  making  a  different  provision 
from  that  contained  in  a  former  one,  upon  the  same  sub- 
ject, should  not  be  construed  as  an  explanatory  act,  unless 
such  a  construction  fairly  appears  to  be  intended,  but,  to  the 
extent  of  the  incompatibility  of  the  two  acts  with  each 
other,  as  an  implied  repeal  of  the  earlier."] 

•"  Roberts    v.   Pippen,    75  Ala.  terms,  and  referring  to  the  title  of 

103;  Fulghum  V.  Roberts,  Id.  341.  an  act  as  intended  to  be  repealed, 

(a)  Evans  v.  Rees,  9  C.  B.  N.  S.  was    limited,  by   construction,  on 

391,  39  L.  J.  16  ;  ace.  Marshall  v.  the  ground  that  the  general  scope 

Martin.  L.  R.   5  Q.    B.    2o9.     See  of  the  later  act  was  to  reconstruct 

also   Davies  v.    Griffiths,   4  M.  &  the   political    organization    of  the 

W.  377,  and  Wrightup  v.   Green-  city  of  New  York  and  not  to  repeal 

acre,  10  Q.  B.  1.  existing  provisions  as  to  criminal 

«' State      V.      Vernon    County  courts"  therein  :    see    ante,    §   43, 

Court,  53  Mo.  128.  See  Matt.  5,  17.  note. 

■»6  Ibid. ;  and  comp.,  ante,  i^  112.  *">  People  v.  Van  Nort,  64  Barb. 

See  also  Smith  v.  People.  47  N.  Y.  (N.  Y.)  205. 
330,  where  a  repeal,  absolute  in  its 


298 


AVOIDANCE  OF  IMPLIED    REPEAL. 


[^  225. 


§  223.  Generalia  Specialibus  Non  Derogant. — It  is  but  a  par- 
ticular application  ol'  the  general  presumption  against  an  in- 
tention to  alter  the  law  beyond  the  immediate  scope  of  the- 
statute,  to  say  that  a  general  Act  is  to  be  construed  as  not 
repealing  a  particular  one,  that  is,  one  directed  towards  a 
special  object  or  a  special  class  of  objects  {a).  A  general 
later  [affirmative]  law  does  not  abrogate  an  earlier  special 
one  by  mere  implication  (J).  Generalia  specialibus  non 
derogant  (<?);  the  law  does  not  allow  the  exposition  to  revoke 
or  alter,  by  construction  of  general  words,  any  particular 
statute,  where  the  words  [of  the  two  acts,  as  compared  with 
each  other,  are  not  so  glaringly  repugnant  and  irreconcilable 
as  to  indicate  a  legislative  intent  to  repeal,"]  but  may  have- 
their  proper  operation  without  it  {d).  It  is  usually  presumed, 
to  have  only  general  cases  in  view,  and  not  particular  cases 
■which  have  been  already  otherwise  ])rovided  for  by  the 
special  Act,  or,  what  is  the  same  thing,  by  a  local  custom  (e). 
Having  already  given  its  attention  to  the  particular  subject, 
and  provided  for  it,  the  Legislature  is  reasonably  j^resumed 
not  to  intend  to  alter  that  special  provision  by  a  subsequent 
general  enactment,  unless  that  intention  is  manifested  in  ex- 


(a)Lord  Hatherley,  3  A  pp.  950. 
[Tliis  is  especially  so  -vvhere  the 
two  acts  -were  passed  at  the  same 
session  :  Ottiiwa  v.  La  Sallo  Co.,  12 
111.  389 ;  McFarlan  v.  State  B'k,  4 
Ark.  410.] 

{b)  Tliorpe  v.  Adams,  L.  R.  6  C. 
P.  125  ;  K.  V.  Chanipneys,  Id.  384. 
[Seward  v.  The  Vera  Cruz,  L.  R., 
10  App.  Cas.  68 ;  N.  Y.,  etc.,  Ry. 
Co.  V.  Supervisors,  67  IIow.  Pr. 
(N.  Y.)  5;  Jlyde  Park  v.  Oakwoods 
Cem'y  Ass'n.  119  111.  141  ;  State  v. 
Mills,  34  N.  J.  L.  177;  State  v. 
Stevenson,  44  Id.  371  ;  Brown  v. 
Comm'is.  21  Pa.  St.  37  ;  Dyer  v. 
Covington,  28  Id.  186;  Cumru 
Tp.  v.  Poor  Dii's,  112  Id.  204; 
State  V.  Filzuenild,  17  Mo.  App. 
271  ;  Stale  v.''Smilh,  8  S.  C.  127  ; 
Luke  V.  Stale,  5  Fla.  185  ;  Ellis  v. 
Butts,  26  Te.x.  703  ;  Schwenke  v. 
M.  R.  Co.,  7  Col.  512,  and  cases 
infra.  See  also,  Bisli.,  Wr.  L.,  § 
112  b.  and  cases  tliere  cited.] 

(c)  Jenk.  Cent.  120. 

*®  See  Gage  v.   Currier,  4  Pick. 


(Mass.)  399  ;  Covington  v.  East  St. 
Louis,  78  111.  548  ;  ^Conley   v.  Cal- 
houn Co.,  2  W.   Va.  416;   Chesa- 
peake, etc.,   Ry.  Co.  v.  Hoard,  16- 
Id.  270. 

{d)  Lyn  v.  Wyn.  Bridg.  127;  ace. 
M.  Smith,  J.,  in  Conserv.  Thame.9 
V.  Hall,  L.  R.  3  C.  P.  421,  and. 
Bramwell.  B.  in  Dodds  v.  Shepherd, 
1  Ex.  D.  78. 

(e)  Co.  Lilt.  115a;  Herbert's 
Case,  3  Rep.  13b,  note  U.  ; 
Gregory's  Case,  6  Rep.  19b  ;  R.  v. 
Pugh,  Doug.  188  ;  Miitcliins  v. 
Player,  Orl.  Bridg.  272  ;  Plowd. 
3G.  [The  existence  of  a  special' 
custom,  such  as  is  known  and 
recognized  by  the  law  of  England, 
is  probably  unknown  in  this  coun- 
try. But  as  theie  surh  a  custom 
has  all  the  effect  of  a  local  law,  the 
decisions  upon  the  effect  of  general 
statutes  on  such  customs  are  in- 
structive to  tlie  American  as  -.veil  as- 
the  English  reader,  and  in  princi- 
ple, apposite  to  the  sulneel  in 
iiand.] 


§  224]  GENERALIA  SPECIALIBUS,  ETC.  299 

plicit  language  {a),  or  tliero  be  soinetliing  which  shows  that 
the  attention  of  the  Legishiture  had  been  turned  to  the 
special  Act,  and  that  the  general  one  was  intended  to  embrace 
the  special  cases  within  the  previous  one  (5);  or  something 
in  the  nature  of  the  general  one  making  it  unlikel}'  that  an 
exception  was  intended  as  regards  the  special  Act.  The 
general  statute  is  read  as  silently  excluding  from  its  opera- 
tion the  cases  which  have  been  provided  for  by  the  special 
one  ;  [for,  as  was  said  of  the  relation  of  a  general  act  to  a 
local  one  applying  to  a  single  county  of  the  state,  "  it  is 
against  reason  to  suppose  that  the  Legislature,  in  fram- 
ino-  a  general  system  for  the  state,  intended  to  repeal 
a  special  act  which  the  local  circumstances  of  one  county 
had  made  necessary.""  The  fact  that  the  general  act  con- 
tains a  clause  repealing  acts  inconsistent  with  it  does  not 
diminish  the  force  of  this  rule  of  construction."] 

§  224.  Thus,  when  a  local  Act,  for  completing  the  bridge 
across  the  Thames,  exempted  the  owners  of  the  adjoining^ 
ground,  which  was  to  be  embanked  at  their  expense,  from 
all  taxes  and  assessments  whatsoever,  it  was  held  that  later 
general  Acts  imposing  taxes  and  rates  in  respect  of  lands 
and  houses,  did  not  repeal  that  exemption  (c).  [Conversely, 
where  a  special  act  declared  certain  public  property  liable 
to  road  taxes,  it  was  intimated  that  a  subsequent  general 
statute  declaring  property  of  the  kind  to  which  it  belonged 
exempt  from  all  taxation,  state  and  local,  could  not  have  the 
effect  of  repealing  the  special  law."]  Where  an  Act  took 
away  the  right  of  bringing  an  action  respecting  certain  dis- 
putes, which  was  referred  to  the  summary  adjudication  of 
justices ;  it  was  held  that  the  subsequently  established 
County  Courts  acquired  no  jurisdiction   to  try  such  cases, 

(a)  Per  Wood,  Y.C.,  in  Fitzger-  Accounts,   70    Id.   92;    M:\lloy  v. 

aid  V.  Champneys,  2  Jo.  &  H.  54,  Comm'tb,  115  Id.  25. 

30  L.  J.  Ch.  782.  '"  State  v.  Towiish.  Committee, 

(6)  Pa-  Lord  Hatliorley  in'Gar-  (N.  J.)3Ceiitr.  Rep.  351. 

nett  V.    Bradley,  48  L.  J.  Q.   B.  (c)  Williams  v.    Pritchard,   and 

189;  and  see  pe?- Cur.  in  R.  v.  Poor  Eddington   v.  Bonnan,  4  T.  R.  3 

Law  Cora.,  G  A.  &  E.  48.  and  4.       See  Duncan  v.  Sc.  N.  E. 

49  Brown  v.  Comm'rs.  21  Pa.  St.  R.  Co.,  2  Sc.  App.  20. 

37,  per  Gibson,  C.  J.  ;  Seifricd  v.  s'  Cumru  T\\  v.  Poor  Dir's,  112 

Com'lb,    101   Id.   200 ;   Kilgore  v.  Pa.  St.  2G4,  371. 
Com'tb,    94  Id.    i95  ;  lie  Bounty 


'300  GENERALIA    SPECIALIBUS,    ETC.  [§  225 

under  the  general  authority  to  try ''all  pleas"  (a).  [N"or 
was  an  act  exeniptinj^  a  certain  class  of  property  from  muni- 
cipal taxation  repealed  by  a  subsequent  act  giving  municip- 
alities power  to  tax  "all  property  "  within  their  limits,  there 
being  no  expressed  intention  to  take  away  the  exemption 
formerly  enacted."] 

The  provision  of  the  Judicature  Act  of  1875,  that,  except 
where  it  is  otherwise  provided  by  the  Act  or  the  rules 
annexed  to  it,  the  judgment  of  the  Court  shall  be  obtained 
by  motion,  was  held  not  to  affect  the  County  Courts  Act  of 
185G,  which,  after  authorizing  the  Superior  Courts  to  send 
•certain  cases  to  the  County  Courts  for  trial,  had  directed 
that  the  judgment  might  be  signed  in  accordance  with  the 
result  as  certified  by  the  registrar  {b).  [An  act  punishing 
killinsr  while  ensfajced  in  the  commission  of  an  unlawful  act, 
would  not  repeal  an  act  punishing  killing  by  adn)inistering 
poisonous  drugs  to  procure  an  abortion."  An  act  prohibit- 
ing any  public  officer  from  appropriating  funds  collected  in 
one  year  to  demands  that  arose  in  a  previous  one,  would,  upon 
the  same  principle,  not  operate  as  a  repeal  of  an  act  directing 
the  application  of  certain  taxes  to  the  payment  of  past  due 
claims,  but  would  only  prevent  executive  officers  from 
employing,  in  their  own  discretion,  the  public  moneys  for 
such  purpose."] 

§  225.  The  General  Turnpike  Act,  3  Geo.  4,  c.  126, 
which  empowered  turnpike  trustees  to  let  the  tolls,  and  pro- 
vided that  all  contracts  for  letting  them  should  be  valid, 
though  not  by  deed,  "  any  Acts  of  Parliament  or  law  to  the 
contrary  thereof  notwithstanding,"  was  held  unafifected  by 
the  8  &  9  Yict.  e.   lOG,  which   in   the   most  general  terms 

(a)  Exp.  Payne.  5  D.  &  L.  679.  generally  upon    one     relating    to 

"  Bl:iin  V.Bailey,  25  Ind.   165.  criiiies  by  a  particular  class  of  per- 

And  see  Rounds  v.  Wayranrt,  81  sons,  e.  (/..  slaves  :   Luke  v.  Stiite, 

Pa.  St.  395,  where  it  was  held  tliat  5    Fla.    185.      (But  comp.    p:iy  v. 

the  Pa.  general  tax  act  of  1873  did  Thompson.    3  A.   K.   Marsh  (Ky.) 

not  repeal  the  act  of  1864,  exempt-  70)   and  of  a  general  act   for    the 

ing  soldiers'  property,  by  conferr-  punishment  of  grand  larceny  !ind 

ing    authority    to    tax  "    all    real  other   offences    named    upon    one 

estate."  punishing    horse-stenling   and   lar- 

(6)  See  note  c,  p.  299.  ceny    of    certain    other    animals: 

"  Robbins  v.  State,  8  Ohio  St.  Magruder  v.  Stale,  40  Ala-  347. 

131.      And  see  also,  as  to  similar  "  State  v.  Smith,  8  S.  C.  127 
-effect  of  a  statute  relating  to  crimes 


§  225]  GENERALIA    8PECIALIBU8,    ETC.  301 

declares  that  "  a  lease,  required  by  law  to  be  in  writing,   of 
any  tenements  and  hereditaments,  shall  !)••  void  unless  made 
by  deed."      It  was  not  to  be  supposed  that  ilie  Legislature 
intended  by  the  later  Act  to  interfere  with  the  policy  of  the 
earlier  one,  which  was  emphatically  that  a  deed   should  not 
be  required  for  turnpike  tolls  (a),  though  necessary  by  the 
general  law  of  the  land  {h).       [Upon  the  same  principle,  an 
act  "i-ivino-  a  general  authority  to  commissioners  to  lay  out 
such  streets  as  they  may  deem  necessary  within  the  limits  of. 
a  borough  will  not  authorize  them  to  run  a  street  through  a, 
graveyard,  the  laying  out  of  streets  through  such  being  pro- 
hibited by  a  prior  general  law  ;"  and  an  act  requiring  ap- 
pellants from  decrees  of  the  Orphans'  Court  to  give  security^. 
by  recognizance  with  sufficient   sureties,  in    the    Orphans- 
Court,  conditioned  to  prosecute  the  appeal  with  effect,  was 
held  unaffected  by  a  subsequent  act  providing,  that,  upon 
all  appeals  and  writs  of  certiorari  or  error,  a  recognizance 
with  sufficient  sureties  should  be  entered  in  the    Supreme 
Court   conditioned    for   the   payment   of   costs  and   return 
of   the   record."     A    general   law  enacting  that  a  judicial 
sale   shall    divest   all    liens  save     a    first    mortgage    upon 
the  property  sold,  does  not  repeal  a  special  law  establishing; 
a  contrary  system  and  practice  in  a  particular  locality ;"  nor 
a  general  law  requiring  collectors  of  taxes  to  pay  over  the 
taxes  on  or  before  December  22  of  every  year,  a  special  one 
requiring  to  the  treasurer  of  a  particular  city  to  receive  the 
taxes  and  pay  them   over  on  or  before  October  22  of  each 
year.'*      An  act  prohibiting  the   "catching  of  sturgeon  in 

(a)  Shepherd  v.  Ilodsman,  18  Q.  decrees,  is  eypressly  affirmed  in: 
B.  310,  21  L.  J.  Q.  13.  203.  Coni'th  v.  Judges.  10  P:v.  Si.  37. 

(b)  II.  V.  Salisbury,  8  A.  &  E.  Leaving  this  power  with  the  judges 
TIG.  [For  an  instance  in  wiiichthe  of  that  court  evinces  wise  ]egi<la- 
phrase  "  any  law,  usage  or  custom  live  forethought.  They  know  bet- 
to  the  contrary  notwilhstanding,"  tor  than  any  other  tribunal  what 
occurring  in  a' later  act,  was  held  security  is  necessary  to  protect  the 
not  to  indicate  an  intention  to  re-  vast  and  complicated  interests 
peal  an  earlier  one,  see  Mayor  of  which  they  are  required  to  guard;  " 
Philad'a  v.  Davis,  6  Watts  &  S.  Ibid.,  at  p.  230.  The  acts  under 
(Pa.)  201),  278.]  construction  were  tliose  of  29  i\lar. 

"Egyi)tStr.,2Grant  (Pa.)  455.  1832,  and  8  June,  1881. 

66Com'th  V.  Judges,  102  Pa.  St.  *'  Hhein  Bldg.  Assn  v.  Lea,  100- 

228.     "  The  discretionary  i^ower  of  Pa.  St.  213. 

the  Oriihans'  Court  as  to  "the  extent         "  State  V.  Stevenson,  44  X.  J.  L. 

of  the  security  which   it   may  re-  871. 
quire,  on  an  appeal  from  one  of  its 


302  GKNERALIA    SPECIALIBUS,    ETC.  [§  22G 

any  of  the  waters  of  "  the  Cominoiiwealtli  of  Pennsylvania, 
did  not  repeal  a  prior  act  ])erinitting  the  catching  of  stur- 
geon in  tlie  waters  of  Lake  Erie  by  means  of  pond  nets;" 
and  a  general  act  to  protect  salmon  was  held  inapplicable  to 
the  Cohnnbia  River,  as  to  which,  at  the  time  of  the  passage 
-of  the  general  act,  there  was  a  special  one  in  force." 

§  22G.  Merely  Seeming  Repugnancy  between  General  and  Spe- 
cial Acts. — [Sometimes,  as  in  the  case  of  general  statutes  upon 
the  same  subject"'  the  inconsistency  between  the  general 
and  the  special  act  is  merely  a  seeming,  and  not  a  substan- 
tial one."'  So,  where  an  act  provided  that  the  stock  of  a  cer- 
tain railroad  company,  whose  railway  was  only  partly  in  the 
state  of  Pennsylvania,  should  be  subject  to  taxation  to  an 
amount  equal  to  the  cost  of  constructing  that  part  of  the 
road  which  was  in  Pennsylvania ;  and  a  later  general  act 
declared  that  every  railroad  company  doing  business  in 
Pennsylvania  should  be  subject  to  a  certain  tax  npon  its 
capital  stock,  the  later  act  clearly  could  not  operate  as  a 
repeal  of  the  former.  The  function  of  the  special  act  was 
to  fix  the  amount  of  the  capital  stock  of  this  particular  cor- 
poration to  be  assessed ;  that  of  the  latter,  to  fix  the  rate  of 
taxation.  There  was,  therefore,  no  real  repugnancy  between 
the  acts  ;  "  no  difficulty  in  the  way  of  both  having  effect."" 
So,  again,  a  general  statute  regulating  the  affairs  and  powers 
of  mnnicipal  corporations,  authorizing  them  to  alter  the 
channels  of  water  courses,  etc.,  within  the  corporate  limits, 
and  the  like,  and  providing  for  proceedings  in  one  court 
to  assess  damages  therefor,  and  directing  the  payment  of 
these  by  the  city,  would  obviously  not  repeal  a  prior  local 
act  authorizing  a  city  to  straighten  the  course  of  a  creek 
within  its  limits,  and  within  those  of  a   township  beyond 

"  Dunlap  V,  Com'th,  108  Pa.  St.  rclatin;?    only    to    easts,    the  code 

607.  rcpeuliiii^  only  in  "  cuses  provided 

''''  State  V.  Stur.f^ess,  10  Orcg.  58.  for"  by  it,  and  the  pcrccniaoie  in 

«' See  ante,  §i^  till.  213.  question,    tlierefoie,    if     "costs," 

"-  An  act  allowing  the  prevailing  being  unrepealed   because    unpro- 

party  in  certain  actions  tried    in  vided     for    (see    t:?    203),    and.    of 

San    Francisco   to   include   in    his  course,  unrepealed  if  not  "costs:" 

judgment   live    per   cent,    on    the  Whitukcr  v.  ilaynes,  49  Cal.  590. 

amount  recovered,    was  held   un-         ^^  Cora'lh  v.  Erie  liy.  Co.,  98  Pa. 

repealed  by  provisions  of  the  code  St.  127. 


§  227]  GENEUALIA  SPECIALIBUS,  ETC.  303 

its  limits,  providing  for  the  ascertainment  of  damages  in 
another  court,  and  requiring  their  payment  by  the  county 
in  which  tlie  city  was  located."  The  statutes  were  not  co- 
extensive, and  hence  there  could  be  no  pervading  incon- 
-sistency  between  them." 

§  227.  Personal  and  Local  Acts.— [A  general  statute  will  not, 
ordinarily,  repeal  by  implication  particular  statutes  made  for 
the  relief  or  benefit  of  individuals,"  and]  personal  Acts  and 
local  customs  afiecting  only  certain  persons  in  their  rights, 
privileges,  or  property,  offer  other  illustrations  of  this  rule, 
that  special  enactments  are  unaffected  by  the  general  words 
of  a  more  general  enactment,  [unless  a  modification  or  repeal 
-of  the  same,  in  whole  or  in  part,  is  provided  by  express 
■words  or  arises  from  the  necessary  meaning  and  effect  of  the 
language  and  provisions  of  the  general  law."]  Thus,  the  Act 
abolishing  fines  and  recoveries  which,  in  the  most  compre- 
hensive terms,  authorizes  "  every  tenant  in  tail"  to  bar  his 
entail  in  a  certain  manner,  does  not  apply  to  the  tenant  in 
tail  of  property  entailed  by  special  Act  of  Tarliament,  such 
as  the  Shrewsbury,  Marlborough,  Wellington,  and  other 
special  Parliamentary  entails  {a).  And  in  the  same  way,  the 
1  &  2  Vict.  c.  110,  which  in  general  terms  enacted  that  a 
judgment  of  a  Superior  Court  shall  operate  as  a  charge  on 
the  lands  of  the  debtor  from  the  time  of  its  registration  in 
the  Coinmon  Pleas  was  held  not  to  repeal  by  implication  the 
Middlesex  Registration  Act,  which  had  enacted  that  no  judg- 
ment should  bind  lands  in  Middlesex,  but  from  the  time  of 
its  registration  in  the  register  office  for  Middlesex  {h).  An 
Act  which  authorized  "any  person"  to  sell  beer,  who 
obtained  a  license  for  the  purpose,  would  not  be  construed 
as  repealing  the  custom  or  local  law  of  a  borough  w^hich  dis- 
qualitied  all  persons  who  were  not  burgesses  from  selling 

"  Harrisburg  v.  Slicck,  104  Pa.  Aberi^avcnny   v.  Brace,  L.  R.,  7 

St.  5;J.  Ex.   14.')  ;  and  comp.  lie  Cucktield 

"  Coin  p.  Frederick  v.    Goshorn,  Board,  I'J  Beav.  15J. 

30  Md.  43G,  post,  t^  230.  (b)  1  &  2  Vict.  c.  110,  ss.   13  & 

66  Beiidoa  v.  Baibin,  13  La.  An.  19  ;  7  Aiiue.  c.  20.  s.  18  ;  Wcstbrook 

458.  V.  Blyllic,  3  E.  &  B.  737,  23  L.  J. 

«'  State  V.  Mills.  34  N.  J.  L.  177.  380.     See  also  Dale's  Case,  6  Q.  B. 

(a)  Per  Wood,  V.  C,  in  Fitzgerald  D.   376,  7  App.  240  ;  Fritz  v.  llob- 

V.     Clianipueys,     ubi     sup.      See  sou,  14  Cli  D   542  49  L.  J.  321. 


304:  GENERALIA    SPKCIALIBUS,    ETC.  [§  227 

beer  (a).  [So,  where  a  special  act  provided  that  tavern 
licenses  should,  in  a  certain  county,  be  issued  by  the  treasurer 
thereof,  appointed  certain  fees  therefor,  and  directed  that 
three-fourths  of  such  fees  should  be  for  the  use  of  the  county, 
and  one-fourth  should  be  paid  to  the  state;  and  a  later 
general  act  declared,  that,  when  not  otherwise  provided  by 
special  law,  licenses  should  be  i^ninted  by  the  Courts  of 
Quarter  Sessions,  fixed  the  fees  differently  from  the  special  act 
referred  to,  and  made  the  whole  payable  to  the  state,  repealing, 
however,  specifically,  no  act  except  one  known  as  the  '  Local 
Option  Law,' — it  was  held  that  tlie  special  act  was  not  in  any 
respect  repealed  by  the  general  one,  although  the  exception 
above  stated  seemed  to  refer  only  to  the  agency  through 
which  licenses  were  to  be  granted,  and  not  to  the  application 
of  the  fees  received  therefore."  Similarly,  a  statute  impos- 
ing a  tine  for  the  sale  of  spirituous  liquors  in  a  certain  town 
was  held  unaffected  by  a  subsequent  general  act  upon  the 
subject;"  and  in  the  same  way,  the  general  repealing  clause 
of  a  revenue  act  was  held  not  to  affect  a  prior  special  law 
regulating  the  licensing  of  intelligence  offices  in  a  particular 
county.'"]  An  act  which  required  all  persons  to  serve  as 
jurors  of  the  county,  in  general  terms,  would  not  be  con- 
strued as  extending  to  a  hundred,  when  those  who  served  as 
jurors  in  the  hundred  were  by  custom  exempted  from  ser- 
vice in  the  county  (J).  So,  the  50  Geo.  3,  c.  41,  which 
empowered  licensed  hawkers  to  set  up  in  any  trade  in  the 
place  where  they  resided,  was  held  not  to  give  them  that 
privilege  in  a  borough  where,  by  custom  or  bye-law,  strangers 
were  not  allowed  to  trade  (c).  [So,  where  a  local  act  author- 
ized the  appointment  of  nuditors  by  the  Court  of  Quaiter 
Sessions  to  audit  the  bounty  accounts  of  school  directors  of 
wards,  etc.,  in  a  certain  county,  and  a  subsequent  general 

(a)  Leicester  v.  Burgess,  5  B.  &         '"  Hall    v.    Supervisors,  20  Cal. 

Ad.  246  ;    11  Geo.  4,  c.    64,  s.  29  591. 

repealed  by  25  &  26  Vict.  c.  22;         (i)  R.   v.  Pugh,  Doug.   188 ;  K. 

coinp.   Huxliam  v.    Wheeler,  3  H.  v.  St.  James'  Westminster,  5  A.  & 

&  C.  75,  3:j  L.  J.  153  ;  Ilutchius  v.  E.  391  ;  K.  v.  Jobnsou,  6  CI.  &  F, 

Player,  Bridg.  272.  41. 

««  Kiigore  v.  Corn'tb,  94  Pa.  St.  (c)  Simon  v.   Moss.  2  B.  &  Ad. 

495.     See  ante,  ii  203.  543 ;      J.landalT     Market     Co.     v. 

«9  Mcllae  V.  Wessell,  6  Ired.  L.  Lyndon,  8  C.  B.  N.  S.  515,  30  L.. 

(N.  C.)  153.  J.  1U5. 


§  228]  GENERALIA    SPECIALIIiUS,    ETC.  305 

act,  without  repealing  clause  or  reference  to  said  act,  required 
the  auditing  of  such  accounts  by  the  proper  board  of  auditors- 
of  the  ward,  etc.,  it  was  held  that  the  latter  act  did  not 
repeal  the  former."]  So  an  act  which  authorized  the  lord 
of  a  manor  and  his  heirs  to  break  up  the  pavement  of  the 
streets  of  a  town,  for  the  purpose  of  laying  down  water-pipes- 
to  convey  water  to  and  through  the  town,  from  his  estate, 
would  not  be  affected  by  a  subsequent  Act  which  vested  the 
same  streets  and  pavements  in  a  public  body,  and  empowered 
it  to  sue  any  person  who  broke  them  up  {a). 

§  228.  Charters,  etc.  Municipal  Corporations.— [In  accordance 
with  this  principle,  general  acts  are  ordinarily  held  not  to 
repeal  the  provisions  of  charters  granted  to  umnicipal  and 
other  corporations,  or  special  acts  passed  for  their  benefit, 
though  conflicting  with  the  general  provisions."  So,  where 
the  charter  of  a  municipality  contained  a  proviso  prohibiting 
it  from  pledging  its  credit  for  over  $10,000  without  a  vote, 
etc.,  a  subsequent  act  empowering  the  city  to  build  a  bridge 
and  pledge  its  credit  therefor  was  held  subject  to  the  condition 
and  limitation  of  the  proviso."  And  where  the  charter  of 
a  village  gave  to  its  authorities  the  exclusive  right  to  grant 
licenses  for  selling  liquors  in  the  village,  the  license  fee  not 
to  be  less  than  that  fixed  by  the  laws  of  the  state,  and 
directed  that  the  village  treasurer  should  annually  pay  to 
the  county  treasurer  the  sum  of  $10  for  every  license  granted 
under  the  charter,  beyond  which  amount  no  license  money 
was  required  to  be  paid  by  the  village  to  the  county  treas- 
urer ;  the  rc-enactraent,  in  a  revision  of  the  laws  of  the 
state,  of  an  act,  in  force  when  the  charter  was  granted, 
requiring  villages  generally  to  pay  to  the  county  all  moneys 
derived  from  such  licenses,  was  held  not  to  repeal  the  pro- 
vision of   the   charter   referred    to,  although  the    revision 

"  lie  Bounty  Accounts,  70  Pa.  '"'  Wood  v.  Election  Comm'is,  58- 

St.  92.     This  decision   was  aided  Cal.    561.     Comp.    aiirc,   ^    226  ; 

by  the  consideration,  tliat,  as  tlievo  Ilarrisburg  v.   Slieclv.  104  Pa.  St. 

were  no  auditors  for  the  w.ird  in  53.     Comp.  post,  g  2o0. 

question,  a  repeal  of  the  local  act  "Cumberland   v    Magruder,  34 

would,  in  its  case,  have  involved  a  Md.    3ei.     Comp.    Knox    Co.    v. 

failure  of  Justice,  i.  e.,  no  audit  at  :,lcComh,  19  Ohio   St.   320,  post, 

all :  lb.  p.  97.  S  230  ;  and  Dutton  v.  Aurora,  114 

(a)  Goldson   v.    Buck,    15  East,  111.  138,  ibid.,  note  91. 
372. 

■20 


306  GENERALIA    SPECI.VLIBUS,    ETC.  [§  229' 

repealed  all  acts  and  parts  of  acts  the  subjects  of  which 
were  revised  and  re-enacted,  <n-  which  were  repugnant 
to  its  provisions.'*  So,  again,  a  special  statute  authorizing 
a  town  to  subscribe  in  aid  of  a  railroad  and  raise  money  by 
taxation  to  pay  the  interest  on  bonds  issued  for  that  purpose, 
has  been  held  to  remain  unaffected  by  a  general  act  limiting 
the  rate  of  municipal  taxation  to  pay  interest  upon  municipal 
debts."  Upon  this  princii)le,  a  general  act  relating  to  "  any 
municipal  corporation"  was  held  confined,  in  its  operation, 
to  those  incorporated  under,  or  adopting,  the  act,  and  not  to 
extend  to  those  having  special  charters  inconsistent  with  the 
act."  And  similar,  it  seems,  is  the  construction  of  a  general 
act  declaring  itself  applicable  to  "  every  town  in  the  state  ;  "" 
and  equally  where  the  later  act,  whilst  not  embracing  the 
whole  territory  of  the  states,  is  yet  more  general  than  tlu^ 
special  one  varying  from  its  provisions  ;  e.  g.,  a  special 
mechanics'  lien  law,  for  the  city  of  New  York,  was  not  held 
repealed  by  a  subsequent  law  upon  the  same  subject  ai)ply- 
ing  to  the  cities  of  the  state."  It  follows,  as  a  matter  of 
course,  that,  where  a  general  law  relating  to  the  municipal 
corporations  contains  no  provision  expressly  applying,  e.  g., 
to  the  levy  and  collection  of  taxes,  etc.,  by  cities  incorporated 
under  a  previous  special  statute,  the  provisions  of  the  latter 
on  the  sul)ject  remain  in  force.'" 

§  229.  Charters,  etc.  Corporations  Other  than  Municipal. — [The 
same  principle  applies  in  the  construction  of  general  acts  as 
affecting  charters,  and  si)ecial  acts  passed  for  the  benefit  of 

'•>  Wolwoith  Co.  V.  Whitewater,  Francisco:     Wood      v.     Election 

17  Wis.  193.     It  was  said  that  this  Comm'rs,  58  Cal.  5G1. 

repeal  must  be  construed  as  refer-  "  Fosdick     v.     Perrysburg,    14 

riuL'  to  general  statutes,  and  not  as  Ohio  St.  472.     Comp.  post,  §  230. 

abrogating  all  pnivisions  of  muni-  ''*  Burke    v.   Jellries,    20   Iowa, 

oipai    charters  previously  enacted,  145. 

which  might  convict  with  the  gen-  '"People  v.  West  Chester,  40 
cral  statutes  coutitined  in  the  revis-  Ilun  (N.  Y.)  353;  i.  c,  it  would 
ion:  lb. :  Janesville  v.  Markoe,  18  not  necessarily,  and  simply  on  ac- 
id. 350.  And  see,  for  a  similar  count  of  such  a  provision,  repeiil 
construction  as  to  the  general  pio-  special  legislation  on  tiie  subject  in 
vision  of  the  Political  Code  of  Cali-  behalf  of  a  particular  town,  l)ut 
fornia,  and  of  the  Constitution  of  would  apply  to  every  town  havmg 
187!),  upon  the  provision  of  tlie  act  no  local  law  thereon:  lb. 
of  2  April  18GG,  as  amended  by  "  McKcnna  v.  Edinuudstone,  10 
that  of  1872,  tixing  the  time  for  Daly,  (N.  Y.)410;  91  N.  Y.  231. 
holding  municipal  elections  in  San  '»  Burke  v.  Jeffries,  20  Iowa,  l'^5. 


§  229]  GEN EK ALIA.    SPPXIALIBUS,    ETC.  307 

corporations  other  than  municipal.  Thus,]  whore  a  railway 
company  had  authority,  under  a  special  Act,  to  take  certain 
lands  in  the  metropolis  for  executing  their  works  on  them, 
it  was  held  that  its  powers  were  unaffected  b}'  the  Metropolis 
Local  Management  Act,  18  &  19  Vict.  c.  120,  wliich  was 
passed  sliortly  afterwards,  giving  the  same  powers  to  a  public 
body  {a).  [So,  it  was  held  that  a  method  for  the  con- 
demnation of  land,  to  be  taken  for  a  railroad  company, 
prescribed  in  the  act  incorporating  the  same,  was  not 
•changed  by  a  general  incorporation  act  containing  different 
provisions  on  the  subject."  And,  where  the  act  in  corpor- 
ating  a  turnpike  road  company  required  that  its  rate  of  tolls 
be  written  on  sign  boards  in  "  large  or  capital  letters,"  and 
a  general  act  passed  subsequently  prescribed  that  the  rates  of 
tolls  on  turnpike  roads  be  written  in  capital  letters,  it  was 
held  that,  as  to  the  company  referred  to,  the  private  act  must 
govern."  So  a  provision  in  a  bank  charter  making  its  notes 
receivable  by  the  state  in  payment  of  taxes,  etc.,  was  held 
unrepealed  by  a  statute  which  made  other  current  bank- 
notes also  receivable  for  that  purpose.*'  Nor  did  an  act 
making  state  taxes  payable  in  specie  "  or  the  notes  of  specie 
paying  banks,"  repeal  by  implication  the  charter  provision 
of  the  state  bank  which  made  its  bills  or  notes,  payable  in 
coin,  receivable  in  pajmient  of  taxes  and  other  dues  to  the 
state.*'  Again,  a  special  statute  giving  a  bank  a  summary 
remedy  for  collection  was  held  unaffected  by  a  subsequent 
general  law,  in  the  absence  of  an  intention  clearly  manifest 
on  the  face  of  the  latter  to  repeal  it  ;**  and  it  is  said,  that, 
in  default  of  such  a  manifest  intent,  no  general  law,  sub- 
sequent to  the  enactment  of  a  special  provision  for  a  coi'por- 
ation,  can  be  construed  to  add  other  conditions  to  those 
imposed  by  the  special  law,  thus  modifying  the  latter  by  a 
cumulation  of  conditions.*^] 

(a)  London  and  Blackwall  R.  Co.  "  Nichols   v.  Bertram,    3    Pick. 

V.  Limclinuse    Board,    3    Kay    &  (Mass.)  343. 

Johns.  123,    2G    L.    J.    Ch.    164;         ^i  Furman  v.  Nickol,  8  "Wall.  44. 
Comp.  Daw  v.  Metrop.  Board,  12         ^^  Soutli    Carolina    v.    StoU,    17 

C.B.  N.  S.  161.  Wall.  425. 

80  Cascades  R.  R.  Co.  v.  Sohns,  8^  Pearce  v.  Bank,  33  Ala.  693. 

1  "Wash.  557.  85  Mobile,   etc.,    R.    R.    Co.    v. 

State,  29  Ala.  573. 


308  GENEEALIA    SPECIALIBUS,    ETC.  [§  230 

§   230.    When  General  Act  Repeals  Special. — 111  all  thcsc  cascs, 
tlie  general  Act  seemed  intended  to  apply  to  general  cases 
only;  and  there  was    nothing  to    rebnt    that  presumption. 
"Hut  if  there  be  in  the  Act,  or  in  its  history,  something  show- 
ing that  the  attention  of  the  Legislature  had  been  turned  to 
the  earlier  special  Act,  and  that  it  intended  to  embrace  the 
special  cases  within  the  general  Act, — [and  such  an  intent 
may  be  inferred  from  the  fact  that  the  provisions  of  the 
two    acts    are    so    glaringly    repugnant    to,    and    radically 
irreconcilable  with,  each  other  as  to  render  it  impossible  for 
both  to  stand'"] — something  in  the  nature  of  either  Act,  to 
render  it  unlikely  that  any  exception  was  intended  in  favor 
of  the  special  Act,  the  maxim  under  consideration  ceases  to 
be  applicable  ;  [although,  even  where  the  statute  shows  that 
the  Legislature  had  in  mind  the  existence  of  special  acts,  its 
provisions  will  not  be  construed  to  repeal  them,  if  such  an 
effect  can  be  avoided,  where  there  is  no  indication  of   an 
intention  that  there  was  to  be  a  repeal."]     The  Prescription 
Act,  2  &  3  Will.  4,  c.  71,  in  giving  an  indefeasible  right 
to  light  after   an    enjoyment  of    twenty   years,  "notwith- 
standing any  local  custom,"    plainly  abolished  the  custom 
of    London    which    authorized    the   owner   of   an    ancient 
house  to  build  a   new  one  on    its  old  foundations  to   any 
height,  though  thereby  obscuring  the  ancient  lights  of  hia 
neighbour  {a).     Though  the  sheriffs  of  the  Counties  Palatine 
of  Lancaster  and  Durham  were  expressly  forI)idden  by  the 
7  &  8  Geo.  4,  c.  71,  to  arrest  on  mesne  process  issuing  from 
the  Courts  of  Westminster,  for  less  than  50Z.,this  enactment 
was  held  repealed  by  the  1  &  2  Yict.  c.  110,  which  after 
abolishing  generally  all  arrests  for  debt,  gave  a  judge  power, 
under  certain  circumstances,  to  order  such  an  arrest  in  every 
action  for  any  sum  for  20Z.  or  upwards  {b).     [The  provisions 
of  a  special  statute  incorporating  a  company  and  conferring 
special  powers  upon  it  may  be  modified  or  repealed  by  a 

86  See  Gage  v.  Currier,  4  Pick,  ^^  See  Kilgore  v.  Com'tb,  94  Pa. 

(Mass.)  399;  Covington  v.  East  St.  St.  495,  ante,  §  227. 

Louis,  78  111.  548;   St:ite  v.  Mills,  (a)  Salter's    Co.  v.  Jaj%  8  Q.  B. 

34  N.  J.  L.  177;    Willing  v.  Boz-  109;  Jl.  v.  Mayor  of  London,  13  Q. 

man.  52  Md.  44;  McVcy  v.  McVey,  B.  1;  Merchant  Taylors  v.  Truscott, 

51  Mo.  406;  Conley  v.  Callionn  Co..  11  Ex.  855,  25  L.  J.  173. 

2  W.  Va.  410;   Cbesaiieake,  etc.,  {b)  Brown  v.  McMillan,  7  M.  & 

Ry.  Co.  V.  Hoard,  16  Id.  270.  W.  196. 


§    230]  GKNKUALIA    SPKCIALIBUS,    ETC.  309 

ffcncral  stutnto  inconsistent  witli  them,  tlionijli  not  mention- 
ing  or  referring  to  tlie  special  act."  Thus]  the  Mortmain 
Act  was  lielil  to  extend  to  a  corporate  l)ody  which  liad  been 
empowered  by  an  earlier  Act  to  take  land  by  devise  and 
withoat  license,  in  mortmain  {a).  [A  general  act  "  directing 
the  mode  of  attaching  on  mesne  process,  and  selling  by 
execution,  shares  of  debtors  in  incorporated  companies," 
was  held  to  repeal  a  different  provision  for  the  same  purpose 
in  an  earlier  act  incorporating  a  turnpike  company.** 
Similarly,  the  provisions  of  municipal  charters  or  special  acts 
passed  for  the  benefit  of  municipalitie-^  may  be  affected  by 
general  laws.  Thus,  where  a  municipal  charter  specified 
certain  trades  to  be  licensed,  and  a  subsequently  passed 
general  law  specified  a  number  of  trades  to  bo  licensed,  some 
of  those  designated  in  the  charter  being  contained  in  this 
enumeration,  whilst  others  were  omitted  therefrom,  it  was 
held  that  these  were  no  longer  subject  to  license.""  So, 
where  the  Legislature  had,  by  special  acts,  given  some 
municipalities  authority  to  subscribe  in  aid  of  railroads, 
without,  however,  giving  tliem  the  right  to  sell  the  stock 
thus  subscribed  for,  and  others  the  same  authority,  with 
power  to  sell  under  certain  restrictions,  a  statute  sub- 
sequently passed  giving  general  power  to  "  any  "  municipality 
that  had  subscribed  in  aid  of  any  railroad  to  sell  their  stock, 
without  prescribing  any  restrictions  upon  the  exercise  of  this 
power,  it  was  held  that  the  latter  act  repealed,  by  implication, 
the  limitations  upon  the  power  of  sale  given  to  some 
municipalities  and  substituted,  in  all  cases,  the  full  power 
conferred  by  the  last  act,"     Similarly,  a  special  act  relat- 

**  "Water  Comm'rs  v.  Conkling,  general  act  could  not,  in  reason,  be 

113  111.  340.  confined   to  such  few  as  bad  no 

(a)  Lucraft  v.  Pridbam,  G  Cb.  D.  power  of  sale  by  special  statutes. 

205,  47  L.  J.  744.     See  also  INIorri-  to  tbe  exclusion  of  those  that  bad 

son  V.  Genl.  Steam  Navig.  Co..  22  a  limited  power  by  sucli  statutes, 

L.   J.    Ex.  2;>:!,  and   see   also   jycr  thus  conferring  an  unlimited  power 

.Tessei,  M.  R..  in  Mersey  Docks  v.  upon  tbose  to  wboin  all  power  bad 

Lucas,  51  L.  J.  Q.  B.  116  ;  Gardner  before    been   wlioUy   denied,   and 

V.  Whit  ford,  4  C.  B.  N.  S.  005.  leaving  only  a  restricted  power  to 

89  IIowo    V.    Starkweather,    17  the  others.     And  it  was  also  said  : 
Mass.  240.  "The  circumstances    wbicb    evi- 

90  Cairo  V.  Bross,  9  111.  App.  406.      dcnily  induced  Ibis  general  grant 
"  Knox  Co.  V.  McConib,  It)  Ohio      of  uiiqualilied  powers   .    .    justify 

St.  320.  341.  Tbe  decision  is  basi  d  tlie  belief  that  the  intention  of  tbe 
(pp.  343-346)  upon  the  obvious  Legislature  was  no  less  general 
ground  that  tbe  provisions  of  tbe      than    tlic  terms  employ^ed  would 


310  GENEIiALIA    SPECIALIBUS,    ETC,  [§  231 

ing  to  the  openiiii^  and  widening  of  a  certain  creek  in  a 
certain  city  was  held  to  be  entirely  abrogated  by  an  act 
adopting  a  code  as  a  substitute  for,  and  in  view  of,  all 
general  land  and  local  laws  then  existing,  although  the  latter 
act  contained  provision  to  the  effect  that  "no  rights,  prop- 
erty, or  privilege  held  under  a  charter  or  grant  from  this 
state  shall  be  in  any  manner  impaired  or  affected  by  the 
adoption  of  this  code.""] 

§  231.  Effect  of  General  Act  Intended  to  Furnish  Exclusive 
Rule. — The  general  Lands  Clauses  Act  of  1845,  which 
authorizes  the  compulsory  taking  of  lands  for  works  of 
public  utility,  such  as  railways,  and  gives  corresponding 
powers  to  tenants  in  tail  or  for  life,  to  convey  the  lands  so 
required,  would  appl}'  to  tenants  in  tail  under  special  pailia- 
jnentary  entails,  such  as  the  Abergavenny  entail  («).  The 
County  Courts  acquired  jurisdiction,  under  their  general 
authority  to  hear  "  all  pleas  "  where  the  debt  or  damage  did 
not  exceed  201.,  to  enforce  the  payment  of  a  rate  imposed 
under  a  local  Act  passed  before  those  Courts  were  estab- 
lished, and  which  had  made  such  rates  recoverable  only  by 
action  in  the  Superior  Courts  {h).  A  local  Act  which  pro- 
vided that  the  prisoners  of  the  borough  to  which  it  applied, 
and  which  had  a  separate  Quarter  Sessions,  should  be  main- 
tained in  the  county  jail  on  certain  specified  terms,  wa& 
held  to  be  suj)erseded  by  the  General  Act,  5  &  6  Vict.  c. 
95,  which  enacted  that  every  borough,  which  had  Quarter 
Sessions,  sliould,  when  its  prisoners  were  sent  to  the  county 
jail,  pay  the  county  the  expenses,  including  those  of  repairs 
and  imi^rovements  (c). 

[An  intention  tc  supersede  local  and  special  acts  may, 
indeed,  as  is  apparent  from  the  illustrations  afforded  by  this 

seem  cleail}'^  to  indicate."     See  also  v.  Magruder,    34  Md.  381,  ante,  § 

Duttnn    V.    Aurora,    114  111.    138,  228. 

where  a  general  act  authorizing  all  ^^  Frederick  v.  Goshorn,  30  Md. 

cities    to    construct    water-works  436.     Comp.  Ilarrisburg  v.  Sheck, 

without  limit  as  to  cost,  and  to  104  Pa.  St.  53  ;  ante,  ^  226. 

borrow  money  for  the  purpose,  was  (a)  Re  Cuckfield  Board,  19  Beav. 

held  to  abrogate  the  provision  of  153,  24  L.  J.  Ch.  585. 

the    charter  of  a  partic'ular    city  {b)  Slewart  v.  Jones,  1  E.  &  B. 

limiting     its     power     to     borrow  22,  22  L.  J.  1. 

money.     Comp.  Fosdick  v.  Perrys-  (c)  Bramstou  v.  Colchester,  6  E. 

burg,  14  Id.  472,  and  Cumberland  &  B.  216,  25  L.  J.  73. 


S  232]  GENEBALIA    SPKCIALIBDSj    ETC.  311 

iiiul  tlie  prucedii)g  suctions,  be  gathered  from  the  design  of 
an  act  to  regulate,  by  one  general  system  or  provision,  the 
entire  subject-matter  thereof,  and  to  substitute  for  a  number 
of  detached  and  varying  enactments,  one  universal  and  uni- 
form rule  applicable  throughout  the  state."  Accordingly, 
it  has  been  held  that  statutes  fixing  the  terms  of  officers  in 
certain  counties,  are  to  be  deemed  repealed,  by  implication, 
by  a  general  statute  fixing  the  terms  of  office  of  that  class 
of  officers  throughout  the  state."  And  this  seems  to  have 
been  the  principle  upon  which  it  was  held,  in  Pennsylvania, 
that  the  act  of  1855,  imposing  a  line  of  $50,  prescribing  the 
mode  of  proceeding  for  its  enforcement  by  an  action  of 
debt,  and  authorizing  a  further  jninishment  by  indictment, 
fine  and  im])risonment,  was  held  to  repeal  a  local  act  of 
1851,  imposing  the  same  line  recoveral)le  summarily.""'] 

§  232.  General  Act  in  Terms  Applying  to  Subject  of  Special 
Act. — Where  a  City  gas  company  had  been  precluded  by  its 
private  Act  from  charging  more  than  four  shillings  for 
every  thousand  feet  of  gas  of  a  certain  quality,  and  the 
Metropolis  Gas  Act  of  1860  required  the  City  gas  companies 
to  supply  a  better  and  more  expensive  gas  at  the  rate  pre- 
scribed by  ir,  which  might  amount  to  live  shillings  per 
thousand  feet;  it  was  held  that  the  later  provision  imjjliedly 
repealed  the  earlier  prohibition.  Here,  however,  the  gen- 
eral Act  avowedly  applied  to  the  company  ;  and  it  would 
have  been  unreasonable  that  the  better  gas  which  it  required 
should  be  supplied  at  the  price  mentioned  in  the  special 
Act,  merely  because  the  latter  had  not  been  repealed  in 
express  terms  («.) 

'^  See  Gorham  v.  Luckctt,  G  B.  general  desertion  act  was  bold  to 

Mon.  (Ivy.)  146.     As  to  this  effect  repeiil  one  locnl  to  sevenil  counties, 

of     a     Code,    see     Frederick     v.  and  "Williiii!;  v.  Bozmun,  53   IVId. 

Goshoin,  30  Md.  436.  44,  where  it  was  held   that  Md. 

9^  State  V.  Pearey,  44  Mo.  159.  Acts    1874,    cli.    181,    relating    to 

See    Pease  v.    AVliitney,   5  Mass.  oysters,   being    inconsistent  witb, 

379  ;  People  v.  Miner,  47  111.  33.  aiid  repuguaiit  to.  Acts  1872,  oh. 

95  Nusser  Y.  Com'th,  25  Pa.  St.  241,     "an   act  to  protect  oysters 

126;  (this  construction  was,  bow-  within    the  waters  of   Wicomico 

ever,  aided  by  the  fact   that  tbe  Co."  repealed   the  same.      Comp. 

local    act   authorized    a   summary  ante,  §  225. 

conviction,  without  riulit  of  apjK'al  (a)   Great    Central    Gas    Co.   v. 

or  trial  by  jury:   see  Ibid.,  at   p.  Clarke,  13  C.   B.  N.  S.  838,  32  L. 

127)  ;     and     see     also     Keller     v.  .1.  41.     See  also  Parrv  v.  Croydon 

Coni'tb,   71  Pa.  St.  413,   where  a  Gas  Co.,  15  C.  B.  N.  S.  508.     The 


312  GENEUALIA    SPECfALIBUS,    ETC.  [§  233 

§  233.    Special    Act  Incorporating  Provisions  of  General  Act. — 

"Where  a  general  xVct  is  iiicorponited  into  a  special  one, 
the  provisions  of  the  latter  would  i)revail  over  any  of  the 
former  with  which  they  were  inconsistent  {a).  It  may  be 
added,  also,  that  when  an  Act  on  one  subject,  such  as  high- 
ways, incorporates  some  of  the  provisions  comprised  in 
another  relating  to  a  different  subject,  such  as  poor  rates,  it 
does  not  thereby  incorporate  the  moditicatious  of  those  pro- 
visions which  are  subsequently  made  in  the  latter  Act  {b). 
[In  other  words,  the  adoption  in  a  local  law,  of  specific 
regulations  in  a  general  law,  is  not  necessarily,  indeed,  not 
unless  a  contrary  intent  be  clear,  an  adoption  of  subsequent 
changes  therein.''  Hence,  where  a  provision  in  an  amend- 
ment to  a  municipal  chai'ter  is  but  a  re-enactment  of  a  pro- 
vision in  a  former  charter  which  refers  to  the  general  stat- 
utes, such  aniendment  of  the  charter  will  not  be  deemed  to 
refer  to  amendments  made  to  the  general  statutes  after  the 
enactment  of  the  original  charter.*'  And  where  an  act 
passed  in  1871  required  the  Court  of  Quarter  Sessions  of 
the  County  of  Erie  to  appoint  a  bonrd  of  license,  "  with  the 
same  authority  to  grant  licenses  to  taverns,  etc.,  in  the  City 
of  Erie,  as  the  Quarter  Sessions  by  law  now  has,"  the  pro- 
visions of  a!i  act  passed  in  1856  to  be  complied  with  before 
granting  the  licenses,  it  was  held  that  the  authority  of  the 
board  was  to  be  ascertained  by  the  law  as  to  the  Quarter 
Sessions  at  the  passage  of  the  act.'*  Nor  does  the  grant  of 
powers  by  a  statute,  e.  g.,  incorporating  a  town,  by  a  refer- 

Metropolitan    Police  Act,    2  &  3  application  of  the  penalties  under 

Viol.  c.  71,  s.  47,  which  provided  the  Inter  Act,  to  cases  where  they 

that  penalties  under  existing  and  were    imposed     by  justices,   and 

future  Acts,  which  should  be  ad-  applying  them  in  conformity  with 

judged     by     police     magistrates,  the  earlier  statute,  wiiere  they  were 

should  be  paid  to  the  roceiver  of  adjudged  by  a  police  magistrate  : 

the  police  district,  and  the  subse-  AYray  v.  Ellis,  1  E.  &  E.  276,  28 

qnent   Act,   17  &  18  Vi(;t.  c.    o8  L.J.   Q.  B.  45;   and  see  Receiver 

(against  gaming  houses\  which  en-  of  Police  District  v.  Bell,  L.  K.  7 

at^led  that  tlie  penalties  which  it  Q.  B.  433. 

inflicted  sho\dd  be  recoverable  be-  (n)  Atty.Genl.  v.  G.  E.  R.  Co.,  L. 

fore  two  justices  (or  before  a   po-  R.  7Ch.  475.     [Comp.  ante,  §  101.] 

lice   magistrate,  since  he  has  the  (b)  Bird  v.  Adcock,  47  L.  J.  M. 

same  jurisdiction  as  two  jnsti<;es),  C.  123.     [See  po.st,  §  492.] 

and  should  be  i)aid  to  I  lie  overseers  ^^  Darmstaetter  v.  Moloney,  45 

of  the  poor  of  the  parish  in  which  JMicii.  G21. 

the  offence  was  committed,   were  »^  Re  iVIain  Str.,  98  K  Y.  454. 

construed   so   as  to  be  c(nisistent  ^*  Schlaudecker  v.  Marshall,  73 

with  each  other,  by  limiting  the  Pa.  St.  200. 


I  234 J  SPECIAL    ACTS.  313 

ciicc  to  the  powers  "granted  by  another  statute  of  siiiiihir 
purpose,  include  the  additionid  powers  granted  by  au 
iunendnient  to  the  hitter  enactment,  though  passed  before 
the  statute  making  tlie  reference."] 

§  234.  Implied  Repeal  between  Special  Acts. — It  lias  been 
«aid  to  be  a  rule  that  one  private  Act  of  Parliament  cannot 
repeal  another  except  by  express  enactment  {a)  ;  but  neces- 
sary implication  must,  no  doubt,  be  considered  as  involved 
in  this  expression  (b),  if  the  intention  of  the  Legishiture  be 
€0  manifested.  If  the  later  of  the  twc*  Acts  be  inconsistent 
^vith  the  continued  existence  of  the  earlier  one,  the  latter 
must  inevitably  be  abrogated  (c).  [So,  the  tenth  section  of 
an  act  passed  in  1836,  incorporating  a  navigation  company, 
the  section  permitting  the  collection  of  toils  only  after 
completion  of  twenty  miles  of  the  work,  was  held  repealed  by 
the  fifth  section  of  an  act  passed  in  1839,  relating  to  the 
same  company,  the  latter  section  supplying  the  former  by 
permitting  tolls  to  be  collected  for  so  much  of  the  work  as 
lias  been  completed.""'  Similarly,  where  a  river  navigation 
xiompany,  under  its  charter,  had  provided  a  special  remedy 
for  persons  injured  by  its  works,  etc.,  and  a  subsequent  act 
of  the  Legislature  in  relation  to  the  company  declared  it 
subject  to  the  liabilities,  etc.,  pertaining  to  such  corpora- 
tions generally,  it  was  held,  that,  thereafter,  the  general  law 
afforded  the  remed}'-  for  one  injured,  e.  g.,  by  the  raising  of 
a  dam.'"  xA.nd  in  a  late  case  it  was  held,  that,  where  all  the 
<3ssential  provisions  of  a  special  act  were  supplied  by  a  sub- 
sequent special  act,  a'.id  the  provisions  of  the  later  act  were 
incompatible  with  the  continued  existence  of  those  of  the 
earlier  one,  the  latter  must  be  held  repealed  by  implication 
by,  although  there  be  no  repealing  clause  in,  the  more  re- 
cent statute.'" 

''    Tatum  V.   Tamarofi,   9  Biss.  {c)  See  ex.  ^r.   Daw  v.  Metrop. 

475.     See  further,  post,  ^  490.  Board,  13  C.  B.  N.  S.  IGl.      See 

(a)  Per  Turner,  L.  J.,  in  Birken-  Green  v.  R,  1  App.  513.  (II.  L.) 

head   Docks  v.  Laird.  4  DeG.,  M.  '""Ledlie  v.  Nav.  Co..  6  Pa.  St. 

&  G.  772.  23  L.  J.  Cli.  459.      See  392. 

ex.gr.  Pliipson  V.  llarvett,    2  0.  ""  Comins  v.  Turner's  Falls  Co., 

M.  &  R.  473.  138  ]\Iass.  223. 

{b)    Comp.      Lord      Mansfield's  ">*  lie  Cout.    Elect'n  of  IMartz, 

dictum  in  li.  v.  Abbot,  Doug.  553,  110  Pa.  St.  502. 
sup.,  §  153. 


314:  PENAL  ACTS.  [§§  235,  23G 

§  235.  No  Implied  Repeal  between  Penal  Acts  where  Objects  not 
Identical. — The  question  whether  a  new  Act  iin])liedly  repeals 
an  old  one  has  frequently  arisen  in  construing  Acts  which 
deal  anew  with  existing  ofEences  without  expressly  referring 
to  the  past  legislation  respecting  them.  The  problem  often 
arises  whether  the  manner  in  which  the  matter  is  dealt  with 
in  the  later  Act  sliows  tliat  tlie  Legislature  intended  merely 
to  make  an  amendment  or  addition  to  the  existing  law,  or 
to  treat  the  whole  subject  do  novo,  and  so  to  make  a  tabula 
rasa  of  the  pre-existing  law.  Of  course,  where  the  objects 
of  the  two  Acts  arc  not  identical,  each  of  them  being 
restricted  to  its  own  object,  no  conflict  takes  place,  [but  the 
two  stand,  though  they  refer  to  the  same  subject.""]  Thus, 
an  Act  which  empowered  justices  to  commit  for  a  montii  an. 
apprentice  guilty  of  any  misconduct  in  his  service,  was  not 
repealed  by  a  later  one  which  empowered  them  to  compel 
an  apprentice  who  absented  himself  to  make  compensation 
for  his  absence,  and  to  commit  him,  in  default,  for  three 
months  {a).  The  object  of  the  first  Act  was  to  punish  the 
apprentice,  while  that  of  the  other  was  to  compensate  the 
master.  [So,  where  an  earlier  act  was  held  to  give  the 
government  a  civil  remedy  for  indemnity  against  one  who 
violated  its  provisions,  and  a  later  one  to  subject  him  to 
criminal  liability  only,  though  the  description  of  the  offence 
in  both  acts  was  substantially  the  same,  it  was  held  that  the 
later  act  did  not  repeal  the  earlier.'"*  And,  where  an  act 
fixed  a  tax  upon  the  privilege  of  standing  jacks  and  also  a 
penalty  for  the  exercise  thereof  without  a  license,  and  a 
later  act  changed  the  tax  and  provided  a  remedy  for  its 
collection,  being  silent  as  to  the  penalty,  it  was  held  that 
there  was  no  incompatibility  between  the  two  acts  such  as 
would  render  the  later  a  repeal  of  the  former  so  far  as  con- 
cerned the  penalty.""] 

§   236.   Cumulative    Punishments   and     Procedure. — It     WOuld 
seem    that    an    Act,    which,    without     altering    the    nature 

"^U.S.  V.  Clallin,  97 U.  S.  546,  at  ovei ruled  in  its  application  to  the 

p.  553.  parlicultir  statutes  iu  question,  was 

' {(f)  Gray  v.  Cookson,  16  East,  13.  approved  in  piinciple,  in  U.  S.  v. 

Comp.  R.  V.  Youle,  infra,  ^  241.  Claflin,  97  U.  S.  546. 

•o-i  Stockwcll  V.  U.  S.,  13  Wall.  >»^  Gate  v.  State,  3  Sneed  (Tenn.), 

531  ;    and    this    decision,    though  120. 


§  237]  ri'jNAL  ACTS.  315 

of   the  oiicnce,  as  by  iruikiui^-  it  fclon}^  instead  of  misde- 
meanour, imposes  a  new  kind  of  punishment,  or  provides  a 
new   course  of   procedure  for  that  which  was   ah-eady    au 
offence,  at   least    at   common    hiw,   is  usually   regarded   as 
cumulative  and  as  nut  superseding  the  pre-existing  law."* 
For  instance,  though   the  9  &  10  Will.  3,  c.  32,  visits   the 
offence  of  blasphemy  with  personal  incapacities  and  impris- 
onment, an  offender  might  also  be  indicted  for  the  common 
law  offence  (a).     The  2  W.  &  M.,  which  prohibited  keeping 
swine  in  houses  in  London  on  pain  of  the  forfeiture  of  the 
swine   so   kept,  did  not  abolish  the   liability    to   fine   and 
imprisonment  on  indictment  at  common  law  for  the  nui- 
sance {h)  ;  [jnst  as  a  statute  imposing  a  penalty  for  occupying 
a  building  in   a    compact   part   of  the   town  as  a  slaughter 
house,  without  license,  was  held  not  to  repeal   the  common 
law  remedy  relative  to  nuisances,"']  So,  the  3  &  4  W.  &  M. 
c.  11,  in  imposing  a  penalty  of  ol.,  recoverable  summarily, 
on  parish  officers  who  refused  to  receive  a  pauper  removed 
to  their  parish  by  an  order  of  justices,  was  held  to  leave  those 
officers  still  liable  to  indictment  for  the  common  law  offence 
of  disobeying  the  order,  which   the  justices  had  authority  to 
make  under  the  13  &  14  Car.  2,  c.  12.     In  such  cases,  it  i& 
presumed   that  the  Legislature  knew  that  the  offence  was 
punishable  by  indictment,  and  that  as  it  did  not  in  express 
terms  abolish  the  common  law  proceeding,  it  intended  that 
the  two  remedies  should  co-exist  (c).      At  all  events,  the 
chano'C  made   by  the  new  law  was   not  of  a  character  to 
justify    the   conclusion    that   there   was    any    intention    to 
abrogate   the   old ;   and    in   most    of   the    examples   cited, 
the  presumption  against  an  intention  to  oust  the  jurisdiction 
of  the  Superior  Conrts  would  strengthen  it. 

§   237.   Change  in  Locality  and  other  Incidents  of  Punishment. — 
[No  intention  to  repeal  the  existing  law  can,  of  course,  be 

>06  See  Mitchell  V.  Duncau,  7  Fla.  subject,    and     whose      provisions 

13.  Corap.  on  this  subject,  Sedgw.,  should   be    inconsistent    with  the 

pp.  341-345;   Bish.,  Wr.  L.  §   10(J  conliiuicd  operation  of  the  common 

note  lii-^'.    ^vonld  supersede  the  latter  : 

(«)' Pi  V.  Carlile,  3  B.  <fc  A.  161.  Ibid.:  and  see  State  v.  Norton,  23- 

(b)  Pt.  V.  Wisre-,  3  Salli.  4G0.  N.  .1.  L.  33,  and  ante.  §  204. 

i"i  State  V.  Wilson,  43  N.  H.  415;         (■.■)   Stevens  v.   Watson.    1  Salk. 

though  it  was  staled,  that  a  stat-  45;  Pi.  v.    llobinson,  3  Burr,  800,. 

ute  which  should  revise  the  whole  per  Lord  Manstield. 


316  PENAL   ACTS.  [§  238 

inferred  from  provisions  of  a  statute  merely  changing  the 
locality  for  the  infliction  of  the  punishment  prescribed  by 
an  earlier  act.  Thus,  where  one  act  prescribed,  as  a  pun- 
ishment for  a  certain  offence,  imprisonment  in  the  county 
where  it  was  committed,  and  another  authorized  the  court 
to  commit  the  offender,  at  its  discretion,  to  the  house  of 
correction  in  any  county  of  the  commonwealth,  and  repealed 
all  laws  inconsistent  therewith,  it  was  held  that  the  latter 
act  did  not  repeal  the  whole  of  the  former."*  Nor  would 
an  amendment  to  a  former  act,  prescribing  a  different  mode 
of  distributing  the  penalty  imposed  by  the  latter,  affect  the 
offence  or  operate  as  a  repeal  of  the  penalty,  it  working 
only  a  modification  of  the  judgment  by  which  the  penalty 
was  to  be  distributed.""]. 

§  238.  Change  in  Quality  and  Incidents  of  OfJence. — On  the 
other  hand,  where  a  statute  alters  the  quality  and  incidents 
of  an  offence,  as  by  making  that  which  was  a  felony  merely 
a  misdemeanor,  it  would  be  construed  as  impliedly  repeal- 
ing tlic  old  law.  Thus,  tlie  16  Geo.  3,  c.  30,  which  imposed 
a  pecuniary  penalty  merely,  on  persons  who  hunted  or 
killed  deer  with  their  faces  blackened,  was  held  to  Iiave 
repealed  the  Black  Act  (9  Geo.  1,  c.  22),  which  made  that 
offence  capital  (a).  [So,  a  statute  making  a  certain  offence 
a  felony  punishable  by  a  fine  not  exceeding  $1,000,  and 
imprisonment  in  the  state's  prison  not  exceeding  two  years, 
or  both,  was  held  repealed  by  a  subsequent  act  which 
reduced  the  offence  to  the  rank  of  a  misdemeanor,  and  made 
it  punishable  by  a  fine  not  exceeding  $100,  or  imprisonment 
in  the  county  jail  not  exceeding  two  years,  or  both.*"  Con- 
versely, an  act  relating  to  the  procurement  of  abortions,  and 
declaring  persons  committing  any  one  of  certain  offences 
specified  in  it  guilty  of  manslaughter  in  the  second  degree, 
would  be  abrogated,  at  least  as  to  offences  committed  there- 
after, by  an  act  declaring  the  commission  of  one  of  the 
-offences  enumerated  to  be  a  felony  and  prescribing  a  differ- 
ent punishment  therefor, — but  only  as  to  that  one  offence, 
there  being  no  inconsistency  between  the  two  acts,  and  con- 

108    Carter    v.    Burt,    12     Alien         (a)  R.  v.  Davis,  1  Leach,  271, 
<Mass.)  424.  ""  People    v.    Tindale,   57  Cal. 

'09  State  V.  Wilbor,  1  R.  I.  199.         lOi. 


§  239]  I'KNAL     ACTS.  31 T 

sequcntly  no  repeal  by  the  later  one,  concerning  any  of  the 
other  offences."*] 

[But  this  doctrine  has  been  made  subject  to  exceptions, 
based  upon  the  supposed  intention  of  the  Legislation  not 
to  let  the  later  act  operate  as  a  pardon  for  the  commission 
of  an  offence  under  an  earlier  one."'  Thus,  when  the 
change  consisted  in  making  two  degrees  of  murder,  and  mit- 
igating the  punishment  for  tlie  second  degree,  it  was  held 
that  there  was  u6  repeal.'"  And  it  has  been  seen  that  :u 
change  of  the  minimum  limit  of  grand  larceny,  by  increas- 
ing the  same  from  $5  to  $15,  was  held  not  to  work  a 
repeal.'"] 

§239.  Change  in  Degree  of  Punishment. — Again,  where  the 
punishment  or  penalty  is  altered  in  degree  but  not  in  kind, 
the  later  provision  would  be  considered  as  superseding  the. 
earlier  one  {a).  Thus,  the  5  Geo.  1,  c.  27,  which  imposed  it 
fine  of  lOOZ.  and  three  months'  imprisonment  for  a  first 
offence,  and  fine  at  discretion  and  tvvelv^e  months'  imprison- 
ment for  the  second,  was  held  to  be  impliedly  repealed  by 
the  23  Geo.  2,  c.  13,  which  increased  the  punishment  for 
the  first  offence  to  a  fine  of  $5U0Z.  and  twelve  months** 
imprisonment,  and  for  the  second  to  $1,000Z.  and  twoyears^ 
imprisonment  [I).  So,  it  was  held  in  America  that  a  statute, 
which  punished  the  rescue  or  harbour  of  a  fugitive  slave  by 
a  penalty  of  live  hundred  dollars,  recoverable  by  the  owner 
for  his  own  benefit,  and  reserved  his  right  of  action  for 
damages,  was  repealed  by  a  later  enactment  which  imposed 
for  the  same  offences  a  penalty  of  a  thousand  dollars  on  con- 
viction, and  gave  the  party  aggrieved  a  thousand  dollars  by 

"'  Mongeon  v.  People,  55  N.  Y.  offences   the  later  will  repeal  the 

613.     See  post,  §241.  earlier  :"  Scdgw.,  p.  100,  note  cit. 

"•■^  See  post,  §  478.  Gorman  v.  Hammond.  28  Ga.  85  ; 

"3  Com'th  V.  Gardner,  11  Gray  Mullen    v.    People,    81    111.    444 ;. 

(Mass.)  438.  State  v.  Horsey.  14  Ind.  185;  State 

"^  State  V.  Miller,  58  Ind.  399,  v.    Pierw,    Id.    302  ;    Mitchell  v. 

ante,  §  195.  Brown,  1  E.  &  E.  2G7.      The  rea- 

(a)  See  J5«'  Lord  Abinger  in  Hen-  son  for  tliis  rule  is,  in  Gorman  v. 

dcrson  v.   Sherborne,   2  M.   &  W.  Hammond,    supra,    stated    to     be 

236,  and  Atty.-Geul.  v.  Lockwood,  that  an  intention  to  intiicttwo  pun- 

9  M.  &  W.  391;  and  ;;f;' Martin,  B.,  ishnionts  for  the   same  offence  is- 

in  Robinson   v.   Emerson,  4  H.  &  not  to  be  imputed  to  the  Legislar 

C.  3:5  ;  Cole  V.  Coulton,  2  E.  &  ture.] 

B.    395.       ["  If    statutes    provide  {b)  K.  v.  Cator,  4  Burr.  2036. 
different  punishments  for  the  same 


SIS  PKXAL   ACTS.  [§  239 

\v:iy  of  damages  recoverable  hy  action  (u).  [And  in  general, 
it  would  seem,  that,  Mliere  the  penalty  imposed  by  a  former 
statute  is  increased  or  diminished  by  a  later  one,  the  latter 
virtually  repeals  the  first,"'  Thus  a  statute  prohibiting  an 
act  under  a  penalty  of  $10,  to  l)e  recovered  by  an  action  of 
debt  by  anj'  person  suing  for  the  same,  is  repealed  by  a 
later  one  making  the  offence  indictable  and  the  offender 
liable  to  a  line  of  $20.'"  Where  an  act  provided  that  no 
person  should  sell  wine,  brandy,  rum,  or  other  spirituous 
liquors  in  less  quantities  than  28  gallons,  without  license, 
under  a  penalty  of  $20  for  each  offence,  and  a  later  one,  that 
no  inn -holder,  retailer,  common  victualfer,  or  other  person 
should  sell  any  brandy,  rum,  or  other  spirituous  liquor  in  a 
less  quantity  than  15  gallons  under  a  penalty  of  not  more 
than  $20  nor  less  than  $10,  it  was  held,  iii  a  case  where  a 
person,  who  was  neither  an  inn-holder  nor  common 
victualler,  had  been  convicted,  under  the  iirst  act,  of  selling, 
without  license,  etc.,  spirituous  liquors,  that,  whilst  there 
was  no  inconsistency  in  respect  to  the  seller  and  the  kind 
and  quantity  of  the  liquors  sold,'"  there  was  an  inconsistency 
as  to  the  penalty,  and  hence  the  pei'son  convicted  under  the 
first  act  could  not  be  sentenced  under  the  second."* 

[Where,  however,  the  change  in  the  penalty  prescribed 
lay  in  the  direction  of  leniency,  a  different  rule,  founded 
upon  the  absence  of  the  intention  above  referred  to,"°  was 
applied.  So,  where  an  act  prohibited  the  sale  of  liquor  on 
Sunday,  and  provided  a  penalty  for  its  violation  by  both 
line  and  imprisonment,  and  a  later  act  also  forbade  the  sale 
of  liquor  on  Sunday  and  punished  the  same  by  fine,  it  was 
held  that  the  latter  act  did  not  repeal  the  former  by  implica- 
tion.""    The  principles  governing,  in  ordinary  cases,  in  the 

(a)    Norris  v.  Crocker,  13  How-  Bush  v.    Republic,    1    Tex.    455, 

ard.  429.  post,  §  241. 

"6  Flaherty  V.  Thomas,  12  Allen  "''''•They  (the  acts)  are  alike 
(Mass.)  428 ;  Leighton  v.  Walker,  except  as  to  wine  ;  but  as  thu 
9  N.  H.  59 ;  Carter  v.  Hawley,  charge  against  the  defendant  is 
Wright,  (O.)  74  ;  State  v,  Whit-  not  the  seiliug  of  wine,  but  spirit- 
worth,  8  Port.  (Ala.)  434 ;  Smith  v.  uous  liquors,  this  distinction  is 
State,  1  Stew.  (Ala.)  506.  See  also,  immaterial  :"  see  case  below. 
to  same  effect :  Nichols  v.  Squire,  "«  Com'th  v.  Kimball,  21  Pick. 
5  Pick.  (Mass.)  168  ;  Gorman  v,  (Mass.)  373. 
Hammond,  28  Ga.  85.  "^  See  supra,  §  238. 

'"i  Buckalew  v.  Ackerman,  8  N.  '^o  gifred  v.  Com'th.  104  Pa.  St. 

J.  L.  48.      See  as  to  the  converse  :  179. 


§  240]  PENAL     ACTS.  319 

ascertiiinincnt  of  the  intention  impliedly  to  repeal  un  earlier 
act  in  pari  materia  were  applied  in  tliis  case,  and  it  was 
found  that  there  was  iiosuch  repns^nancy  between  the  two 
acts  as  prevented  them  from  standing  together;  that  there 
was,  moreover,  no  intention  discoverable  from  the  later  act 
to  make  it  operate  as  a  repeal  of  the  earlier  ;  and  it  was 
said,  that,  in  the  absence  of  any  expression  or  intimation  of 
such  a  design,  the  fact  that,  to  give  it  such  operation  would 
strike  from  the  earlier  acts  all  power  of  the  courts  to  sen- 
tence to  imprisonment  persons  convicted  of  the  offences 
therein  stated,  was  a  result,  an  intent  on  the  part  of  the 
Legislature  to  prodnce  which  it  was  impossible  to 
assume.  "  We  are  not  questioning  legislative  power  to 
repeal  or  modify  the  sentences  to  be  imposed.  We  are 
merely  considering  the  question  of  implied  intention,  to  be 
gathered  from  the  language  used.'"" 

§240,  Where  Degree  of  Crime  is  Preserved. — [An  intention 
not  to  repeal  by  a  change  of  penalty  has  also  been  inferred 
from  an  express  preservation  of  the  degree  of  guilt  affixed 
to  the  act  in  question  by  a  former  statute.  Thus,  where  an 
act  made  the  forging  of  certain  bank  checks  a  felony,  pun- 
ishable by  fine  and  imprisonment  at  solitary  labor  for  not 
less  than  seven  nor  more  than  ten  years,  and  a  later  one 
changed  the  punishment  to  imprisonment  at  labor  for  not 
less  than  one  nor  more  than  seven  years,  for  the  first  offence, 
and  the  like  imprisonment,  not  exceeding  ten  years,  for 
the  second,  but  declared  that  "  all  definitions  and  descriptions 
of  crimes:  all  fines,  forfeitures,  penalties,  and  incapacities," 
etc.,  and  every  other  matter  not  particularly  mentioned, 
should  remain  as  theretofore,  it  was  held,  that,  the  degree  of 
felony  evidently  not  having  been  changed,  that  being  part 
of  the  definition  and  description  of  the  crime  and  involving 
an  incapacity  in  the  convict  to  be  a  witness,  the  former  act 

»«'  lb.,  p.  184.     See  also,  Miles  reference  to  the  earlier  act  in  the 

V.  State,  40  Ala.  39,  where  an  act  later  is  emphasized  as  negativing 

speaking  as  "  from  and  after  the  an    intention    to    repeal,    ami    in 

passage"  thereof,  and  iirescribing  a  IMilchell  v.  Duncan,  7  Fla.  13,  it  is 

different  punishment,  was  held  not  said   that   there   should    be    some 

to  repeal  the  former  law  as  to  past  notice   taken  of  the  former  act  to 

offences.     In  the  case  of  Sifred  v.  indicate  an  intention  in  the  later  to 

€om'th,  supra,  the  absence  of  any  repeal  it. 


320 


PENAL     ACTS, 


[§  241 


was  uot  to  be  decnied  repealed  by  the  later.'"  lii  such  a 
case,  the  later  act  operates,  instead  of  by  way  of  repeal,  by 
Avay  of  modification  of  the  earlier  act."' 

§  241.  statute  Covering  Whole  Subject  Matter.— But  it  has 
been  laid  down  generally,  that  if  a  later  statute  again 
describes  an  offence  created  by  a  former  one,  and  affixes  a 
different  punishment  to  it,  varying  the  procedure  ;  giving, 
for  instance,  an  appeal  where  there  was  no  appeal  before, 
directing  something  more  or  something  different,  something 
more  comprehensive  ;  the  earlier  statute  is  impliedly  repealed 
by  it  (a).  [This  principle  is  analogous  to  that,  already  dis- 
cussed,"^ which  gives  to  a  statute  covering  the  whole  subject 
matter  of  an  earlier  one,  and  evidently  intended  as  a  substitute 
for  it,  the  effect  of  impliedly  repealing  it.'"  It  is  said  that  a 
statute  on  the  subject  of  a  former  one,  embracing  all  its 
provisions  and  also  others,  and  imposing  different  or  additional 
penalties,  repeals  the  prior  one  by  implication  ;'*°  and  so  does 
an  act  covering  the  whole  subject  matter  of  a  former  one, 
adding  offences  and  varying  the  procedure.'"  But,  in  order 
to  constitute  a   repeal  of   a  statute    by    implication,   such 


J2«  Drew  V.  Coin'tb,  1  Whart. 
(Pa  )  279. 

1"  See  ante,  §§  215-216  ;  and  see 
Wilb.,  p.  322:  "The  difference 
between  repeal  and  modification 
may  also  be  illustrated  by  the 
treatment  of  statutes  by  which 
penalties  are  inflicted.  Where  the 
punishment  prescribed  in  an  earlier 
Act  is  substantially  altered  by  a 
succeed  ins?  act,  the  earlier  statute 
is  repealed  ;  but  if  the  second  act 
merely  adds  a  cumulative  penalty, 
the  first  act  remains  in  full  vigor." 
And  such  is  clearlj'  the  case  also 
where  the  second  act,  without 
affecting  the  crime  as  a  crime, 
merely  modifies  the  penalty  by 
decreasing  it.  In  Turner  v.  State, 
40  Ala.  21,  it  was  held  that  a  \a,\v 
merely  providing  another  alterna- 
tive punishment  for  an  offence,  in 
mitigation  of  the  punishment  pre- 
scribed by  a  former  act,  may 
operate  on  offences  already  com- 
mitted, without  being  ex  post 
facto, — citing  Calder  v.  Bull,  '6 
Dull.  386.  in  Greer  v.  State,  22 
Tex.   588,    it    was    held    that    an 


offence  may  be  punished  either 
under  the  law  as  it  stood  at  the 
time  of  its  commission,  or  under 
the  law  as  it  stands  at  the  time  of 
trial,  if  the  punishment  is  miti- 
gated ;  or  possibly,  tlie  defendant 
may  elect  under  which  he  is  to  be 
punished. 

(rt)  Per  Cur.  in  Michell  v.  Brown, 
2  E.  &  E.  267,  28  L.  J.  M.  C.  55 ; 
per  Bramwell,  B.,  in  Exp.  Baker,  2" 
H.  &  N.  219,  2()  L.  J.  M.  C.  164  ; 
per  Martin,  B.,  in  Youle  v.  Mappin, 
30  L.  J.  M.  C.  237,  Comp.  K.  v. 
Hoseason,  14  East,  605,  and  per 
Lord  llardwicke  in  Middleton  v. 
Crofts,  2  Atk.  674.  [See  Nusser  v. 
Com'th,  25  Pa.  St.  126,  ante,  §231, 
n.  95.1 

^^*  See  ante,  §§  200-202. 

1"  See  Com'th  v.  Kelliher,  12 
Allen  (Mass.)  480,  481  ;  West. 
Union  Tel.  Co.  v.  Steele,  108  Ind. 
163. 

'-8  U.  S.  V.  Tynen,  11  Wall.  88. 
See  also  State  v.  Smith.  44  Tex. 
443  ;  Jolms  v.  State,  78  Ind.  332  ;. 
Poe  v.  State,  85  Tenn.  495. 

1"  U.  S.  V.  Claflin,  97  U.  S.  546. 


I  241 J  PENAL    ACTS.  321 

later  act  must  not  only  refer  to  the  same  subject,  and  also 
have  the  same  object  in  view  as  the  earlier,""  but  it  must 
cover  the  whole  subject  matter  of  the  same.'*"  A  change 
merely  in  the  punishment  for  larcenies  of  over  $2,000  can,  of 
course,  repeal  only  pro  tanto  the  existing  law  as  to  larceny,"" 
— just  as  the  change  of  one  of  a  series  of  offences  made  man- 
slaughter in  the  second  degree  by  the  earlier  act,  to  felony, 
can  repeal  the  earlier  act  only  as  to  that  one  particular.'"] 
The  G  Geo.  3,  e.  25,  which  made  an  artificer  or  workman 
who  absented  himself  from  his  employment,  in  breach  of  his^ 
contract,  liable  to  three  months'  imprisonment,  was  held  to 
be  impliedly  repealed  by  the  4  Geo.  4,  c.  34,  which  punished 
not  only  that  offence,  but  also  that  of  not  entering  on  the 
service,  after  having  contracted  in  writing  to  serve,  with 
three  months'  imprisonment,  plus  a  proportional  abatement 
of  wages  for  the  time  of  such  imprisomnent ;  or  in  lieu 
thereof,  with  total  or  partial  loss  of  his  wages  and  discharge 
from  service  (a).  So  the  11th  section  of  the  54  Geo.  3,  c. 
159,  which  imposes  a  penalty  of  10^.,  leviable  not  by  distress 
but  by  imprisonment  in  default  of  immediate  payment,  on 
any  ]:)erson  throwing  ballast  or  rubbish  out  of  a  vessel  into 
a  harbor  or  river  so  as  to  tend  to  the  obstruction  of  the 
navigation,  and  gives  an  appeal  ;  w'as  held  to  repeal  by  im- 
plication the  earlier  Act,  19  Geo.  2,  c.  22,  which  had 
imposed,  without  appeal,  a  penalty  of  not  less  than  fifty 
shillings  and  not  more  than  5/.  for  the  same  offence,  leviable 
by  distress  or  imprisonment  in  default  of  distress.  The 
preamble  of  the  later  Act,  indeed,  recited  that  it  was 
expedient  to  "  extend"  the  provisions  of  the  earlier  one,  and 
though  its  implied  repeal  seems  to  have  been  thought  at 
variance  with  such  an  intention,  it  may  be  questioned  whether 
its  provisions  were  not  "  extended  "  by  what  was,  in  effect, 

'-*  Ibid.     See  ante,  §  285.  penalty  for  noncompliance,  an  act 

^■-Mjodiill  V.  State,  a?  Ind.  111.  requiring  the  same  to  be  done  in 

Sec  Ilanilyn  v.  Nesbit,  Id.  284.  the  city  or  town  where  the  dog  was. 

^""^  Stale  V.  Grady,  :]-l  Conn.  118.  kept,   "but   imposing    no    penalty, 

'■"  See   Motigeon    v.    People,    55  -would  clearly  operate  as  a  repeal 

N.  Y.  613,  ante,  ti2:j8.     But  where.  of  the  lormer  :  C>'m"th  v.  Kelliher,. 

e.g.,  an  act  requiretl  tiie  owners  of  12  Allen  (.Mass.)  4S0. 

dogs  to  cause  ihem  to  be  registered,  (a)  R.  v.  Youle,  G  II.  &  N.  753  ;. 

numbered      and      described,     and  Youle  v.  Mappin,  30  L.  J.  231,  S. 

licensed,  in  the  town  or  cily  where  C.    Comp.    Owens    v.    Woosman> 

the  owner  resided,  and  imposed  a  sup.,  §  219. 

21 


822  PENAL  ACTS.  [§§  242.  243 

their  rc-eiiactnicnt  with  an  increased  penalty  and  a  suninKuy 
method  of  its  recovery  (a).  Where  a  local  Act  imposed  on 
"all  persons"  engaged  in  making  gas,  who  snifered  impnre 
matter  to  flow  into  any  stream,  a  penalty  of  200^.,  recoverable 
by  a  common  informer  hy  action,  and  a  further  penalty  of 
201.  for  every  day  the  nuisance  was  continued,  payable  to 
the  informer  or  to  the  party  injured,  as  the  justices  thought 
fit ;  and  the  General  Gasworks  Clauses  Act  of  1847  after- 
M'ards  imposed  the  same  [x.'ualty  on  the  "  undertakers  "  of 
gasworks  authorized  by  special  Act,  recoverable  by  the  party 
injured  ;  it  was  held  that  the  earlier  Act  was  repealed  as 
regarded  such  undertakers  (Z>). 

^  242.  [An  exception  to  this  rule,  u])on  what  would 
seem  sound  reason,  in  accordance  with  legislative  intent, 
was  made  in  the  case  of  an  act  that  provided  an  entire 
new  system  for  the  granting  of  licenses  to  sell  liquor,  and 
prescribed  punishments,  differing  from  those  inflicted  by 
previous  statutes,  for  the  violation  of  its  various  provisions. 
It,  however,  permitted  licenses  to  be  granted  under  the  old 
law,  up  to  a  certain  date.  It  was  held  that  the  old  law  must 
be  deemed  to  be  continued  in  force  as  to  all  licenses  granted 
under  it,  during  the  life  of  each  license  so  granted."^] 

§  243.  Revenue  Laws.— It  has  been  observed  by  the  Supreme 
Court  of  the  United  States,  that  in  the  interpretation  of 
laws  for  the  collection  of  revenue,  whose  provisions  are 
often  very  complicated  and  numerous,  in  order  to  guard 
against  frauds,  it  would  be  a  strong  proposition  to  assert 
that  the  nuiin  provisions  of  any  such  laws  were  repealed, 
merely  because  in  subsequent  laws  other  ];ovvers  were  given, 
and  other  modes  of  proceeding  were  provided,  to  ascertain 
whether  any  frauds  had  been  attempted.  The  more  natural 
inference  is  that  such  new  laws  are  auxiliary  to  the  old  (<?). 

(a)  Miclioll  V.  Brown,  2  E.  »&  E.  by  the  former  statute  :  Bush  v. 
257,  28  L.  J.  ]M.  C.  53.  Republic,  1  Tex.  455.     Compare, 

(b)  Parry  v.  Croydon  Gas  Co.,  15      as  to  the  converse,  ante,  J5  230.] 

C.   J3.   N.   S.   568.     [But   wliere   a  '•--  Sanders  v.   Com'th,  20  W.  N. 

statute  prohibited  an  act  under  a  C.  (Pa.)  226. 

penjdty,  to  be  enforced  by  indict-  (c)  Per  Cur.  in  U.  S.  v.   "Wood, 

ment.'a  subsequent  statute  givinij  10  Peters,  342,  353.     [See  also  :  U. 

u  qui  tarn  action  for  .such  penalty  S.    v.    07  Packages,    17   How.  85; 

was  held  to  be  merely  cumulative  U.  S.  v.  100  Barrels,  2  Abb.   U.  S- 

and  not  to  repeal  the  remedy  given  305.] 


§  244]  PENAL   ACJTS.  323 

§  244.  Secondary  Meaning, — Cut  little  weiglit  call  attach 
to  the  argument,  that  because  an  offence  falls  within  two 
distinct  enactments  in  their  ordinary  meaning,  a  secondary 
construction  is  to  besought  in  order  to  exclude  it  from  one 
of  the  two.  Thus,  an  enactment  which  prohibited  under  a 
penalty  any  person  concerned  in  the  administration  of  the 
poor  laws  from  supplying  goods  ordered  for  the  relief  of 
any  pauper,  was  not  construed  as  excluding  a  poor  law 
guardian,  merely  because  another  provision  expressly  made 
such  officers  liable  to  a  much  higher  penalty  for  supplying 
the  parish  workhouse  with  goods  {a).  Where  one  section 
of  an  American  Act  enacted  that  no  ship  from  a  foreign 
port  should  unload  any  of  its  cargo  but  in  open  day,  on  pain 
of  forfeiture  of  both  goods  and  ship,  and  another  prohibited 
the  unloading  of  any  ship  bound  for  the  United  States,  be- 
fore she  arrived  at  the  proper  place  of  discharge  of  her  cargo, 
on  pain  of  forfeiture  of  the  unladen  go"ods;  it  was  held  that 
a  foreign  ship  bound  for  New  York,  and  unloading  a  part 
of  lier  cargo  at  in'ght  at  an  intermediate  harbour  in  the 
United  States,  did  not  escape  from  falling  within  the  former 
section,  merely  because  it  fell  also  within  the  latter.  It 
was  observed  that  there  was  no  principle  of  law  or  interpre- 
tation to  authorize  a  Court  to  withdraw  a  case  from  the  ex- 
press prohibitions  of  one  clause,  on  the  ground  that  the 
offence  was  also  punished  by  a  different  penalty  in  another. 
^Neither  could  be  held  nugatory  (J). 

However,  where  a  statute  by  one  section  empowered  jus- 
tices to  order  the  abatement  of  a  nuisance,  punishing  diso- 
bedience of  their  order  with  a  line  of  lO^.  a  day,  and  by 
another  section  empowered  them  to  prohibit  the  recurrence 
of  the  nuisance  under  a  penalty  of  20^.  a  day,  it  was  held,  in 
a  case  where  orders  had  been  made  at  different  times  under 
both  sections,  and  two  informations  were  laid  for  a  breach 
of  both  by  a  fresh  act  of  the  same  nuisance,  that  there  could 
be  only  one  conviction  (c). 

{(i)  Duvies  V.  Harvey,  L.  R.  9  Q.     114. 
B.  433.  (c)  18  &  19  Vict.  c.  121  ;  Eddle- 

(6)    Ttie    Industry,    1    Gallison,     stone  v.  Barnes,  1  Ex.  D.,  67. 


324  UNREASON,    ETC.  [§  245 


CHAPTER  IX. 

Presumption    against    Unreason,    Inconvenience,  Injus- 
tice  AND   AbSURDITYv 

§  245.  Presumption  against  Unreason. 

§  251.  Presumption  against  Inconvenience. 

§  253.  Joint  and  Several  Offences  and  Penalties.     Complex  Act. 

§  257.  Actions  for  Penalty  where  Several  are  Aggrieved. 

§  258.  Presumption  against  Injustice. 

^  202.  Summary  Proceedings. 

§  26)5.  Limits  of  Effect  of  Presiimpt'oa  against  Injustice. 

§  264.  Presumption  against  Absurdity. 

§  265.  Construction  ut  magis  valeat,  etc. 

§  206.  Caution  as  to  Application  of  Presumption  against  Unreason,  etc. 

§  245.  Presumption  against  Unreason. — In  detcnililling  either 
Avhat  was  the  general  object  of  the  Legislature,  or  the 
meaning  of  its  kngnage  in  any  particular  passage,  it  is 
obvious  that  the  intention  which  appears  to  be  most  agree- 
able to  convenience,  reason,  and  justice,  should,  in  all  cases 
open  to  doubt,  be  presumed  to  be  the  true  one.  An  argu- 
ment drawn  from  an  inconvenience,  it  has  been  said,  is 
forcible  in  law  {a) ;  and  no  less  force  is  due  to  any  drawn 
from  an  absurdity  or  injustice.  The  treaty  between  Louis 
XII.  and  the  Pope,  which  gave  the  king  the  right  of 
appointing  to  "all  bishoprics  vacated  by  the  death  of 
bishops  in  France,"  was,  for  instance,  properly  construed, 
not  as  giving  him  the  right  of  appointing  to  a  foreign 
bishopric  whenever  its  incumbent  happened  to  die  in 
France,  but,  more  consistently  with  good  sense  and  con- 
venience, as  authorizing  him  to  fill  the  bishoprics  of  his 
own  kingdom,  when  their  holders  died,  whether  at  home 
or  abroad  {h).     [It  will  not  be   presumed   that  the  Legisla- 

(a)  Co.  Lilt.  97a.  (6)  Puff.  L.  N.  B.  5,  c.  12,  s.  8. 


§  2-45]  UNREASON,    ETC. 


325 


tnre  intends  what  is  unreasonable?.']  If  a  statute  gives  an 
appeal  from  a  magisti-ate's  decision,  "  when  the  sum  adjudged 
to  be  paid  on  conviction  shall  exceed  two  pounds,"  the 
question  whether  the  penalty  only,  or  the  penalty  plus  the 
costs  was  intended,  would  be  decided  on  similar  general 
considerations  of  convenience  and  reason.  It  would  be 
thought  more  likely  that  the  Legislature  intended  to  give 
an  appeal  only  when  the  offence  was  of  some  gravity,  and 
not  mei'cly  where  the  costs  (which  would  vary  according  to 
the  distances  to  be  traveled  l)y  the  parties  and  their 
witnesses,  the  number  of  the  latter,  and  similar  accidental 
circumstances)  happened  to  swell  the  amount  above  the 
fixed'  limit  («).  [So,  in  civil  actions,  where  the  judgment 
of  a  magistrate  not  exceeding  $20  is,  by  statute,  made  final 
and  conclusive  as  to  both  plaintiff  ami  defendant,  without 
right  of  appeal  therefrom,  it  is  held  that  the  sum  in  con- 
troversy, and  not  the  amount  of  the  judgment  entered, 
determines  the  right  of  appeal."  AjkI  where  a  statute  pro- 
vided that  either  party  should  have  an  ai)peal  where  the 
judgment  given  by  the  magistrate  should  exceed  $5.3e3,  it 
was  held  that  the  plaintiff  had  the  right  of  appeal,  where 
his  claim  exceeded  that  amount,  from  the  judgment  of  a 
magistrate  in  favor  of  the  defendant.'  Strictly  and  literally 
taken,  no  doubt,  the  provision  would  seem  to  mean,  that  if 
the  plaintiff  sue  for  damages  suffered  by  him  to  the  amount, 
e.  g.,  of  $100,  he  might  appeal,  if  he  be  aggrieved  by  a 
judgment  in  his  favor  one  cent  short  of  his  full  demand, 
but  that  he  must  be  concluded  if  he  be  aggrieved  by  a  judg- 
ment against  him  to  the  amount  of  his  entire  claim, — a 
proposition  so  unreasonable  that  respect  for  the  Legislature 
was  riaid  to  forbid  its  adoption,  and  the  court  was  led  to 
entertain  the  somewhat    strained   view,    that,    in    denying 

1  Neenan  v.  Smith.  r)0  ]\Io.  525.  divcM-genco,  get  on  another  car  and 

As  an  application  of  tiiis  doctrine  ride  to  a  different  terminus, 

to  a  miiiii(;ipul  ordinance,  see  Ellis  {n)  K.   v.   Warwickshire,  6  E.   & 

V.  Milw.  City  R.  Co.,  67  Wis.  1^5,  B.  837,  25  L.  J.  M.  C.  119. 

where  such  an  ordinance,  limiting  -  Klinsi'insmitb   v.   Nole,  3  Pen. 

the  fare  to  be  charged   on  a  street  &  \\ .  (Pa.)  120  ;  Downey  v.  Ferry, 

raihv.iv  running  between  tlie  same  2  Watts  (Pa.)  304. 

termini  to  5  cents,  was  held  not  to  •'  Stewart  v.   Keemle,   4  Serg.  & 

permit  a  pas.scnger,  for  5  cents,  to  R.    (Pa.)   72  ;    McCloskey    v.    Mc- 

ride  on  a  car  bound   for  one  tcr-  Connell    9  Watts  (Pa.)  17. 
minus,    and   then,    at    a  poini   of 


326  UNREASON,    ETC.  [§  246 

judgment  to  a  plaintiff,  whose  demand  exceeded  $5.33,  the 
magistrate  virtually  entered  a  judgment  against  him  for 
such  amount.  "  What  is  the  case  more  or  less  than  this  I 
The  plaintiff  brings  a  suit  for  goods  of  the  value  of  seventy- 
five  dollars.  The  judgment  is  given  by  the  justice  or  alder- 
man against  him.  The  justice  or  alderman  then  gives  a 
judgment  exceeding  $5.33.  lie  gives  a  judgment  against 
him  for  the  amount  which  he  claims."*  In  consonance  with 
this  view,  it  was  also  held  under  an  act  which  gave  a 
limited  jurisdiction  in  civil  actions  when  the  debt  or 
damages  demanded  did  not  exceed  $20,  that  the  test  of  the 
existence  of  the  jurisdiction  was  the  amount  of  damages 
demanded,  not  the  amount  actually  due,  for  instance,  upon 
a  note,  when  the  action  was  begun.  Hence,  as  the  amount 
to  which  plaintiff  was  entitled  could  not  be  judicially  ascer- 
tained to  be  less  than  ti)e  damages  denumded,  the  fact  that 
the  judgment  was  for  less  than  $20  could  not  affect  the 
jurisdiction.'] 

§  246.  An  Act  regulating  local  rates,  which  gave  an 
appeal  against  any  rate  to  the  Quarter  Sessions,  and  pro- 
vided, for  enforcing  its  payment,  that  two  justices  might 
issue  a  distress  warrant  against  the  goods  of  the  defaulter, 
if  he  did  not,  on  being  summoned,  "  prove  to  them  that  he 
was  not  chargeable  with,  or  liable  to  pay  such  rate,"  would 
not  be  construed  as  authorizing  the  justices  to  enter  upon 
any  inquiry  into  the  validity  of  the  rate,  if  it  was  valid  on 
its  face ;  though,  literally,  the  defaulter  would  unquestion- 
ably prove  his  non-liability,  if  he  proved  its  invalidit)\  If 
the  question  of  validity,  which  was  left  to  the  Quarter 
Sessions,  was  also  open  to  the  justices  required  to  enforce 
the  rate,  they  might  decide  against  the  validity  of  the  rate 
after  it  had  been  adjudged  valid  by  the  Quarter  Sessions 
(«)  ;  a  conflict  which  could  not  readily  be  supposed  to   have 

*  Stewart  v.  Keemle,   supra,  at  256.  27  L.  J.  199  ;  R.  v.  Brndsliaw, 

p.  74,  pel-  Duncan,  .J.  2  E.  &  E.  83fl,  29  L.  ,T.  199  ;  11.  v. 

^  Cole  V.  Hayes,  78  Me.  539.    See  Hi^irinsou,  2  B.  &  8.  471.  31   L.  ,T. 

also   Ladd    v.    Kimball,    12    Gray  M.^C.  189  ;   Exp.  jVIay,  2  B.  &  8. 

(Mass.)  l;}9.  426.  31  L.  J.  161  ;  K.  v.  Linford.  7 

(^0  Birmingham  v.  Shaw.   10  Q.  E.  &B.  950";  R.  v.  Finnis,  28  L.  J. 

B.  868 ;  E.\p.  Williams,  2  E.  &  B.  M.  C.  201 
84  ;   R.   V.  Kingston,  E.  B.  &  E. 


§  247]  UNREASON,    ETC.  327 

been  intended.  It  would  be  otlierwise,  indeed,  if  tbe  rate 
bore  invalidity  on  its  face,  by  not  showing  that  it  was  made 
in  accordance  with  the  statutory  authority  given  for  the 
purpose  ;  for  they  could  not  be  required  to  enforce  what 
did  not  profess  to  be  a  valid  demand  made  by  competent 
authority  (a). 

An  Act  to  provide  protection  against  dogs  which  empow- 
ered magistrates  to  make  an  order  that  any  dog  found  to 
be  dangerous  should  "  be  kept  under  proper  control  or 
destroyed,"  would,  on  this  principle,  be  construed  as  giving 
the  magistrate  the  option  of  making  an  absolute  order  for 
the  destruction  of  a  dangerous  dog;  not  as  requiring  that 
his  order  should  be  in  the  alternative  terms  of  the  Act,  which 
would  place  the  option  in  the  hands  of  the  owner  of  the  dog  ; 
for  this  would  be  much  less  efficacious  and  convenient  {b). 

§  247.  The  24  &  25  Yict.  c.  98,  which,  after  making  it 
felony  to  engrave  without  authority  plates  of  banknotes 
purporting  to  be  notes  of  the  Bank  of  England  or  of  Ireland, 
or  of  any  other  company,  declared  in  another  section  that 
the  enactment  should  not  apply  to  Scotland,  except  where 
it  was  expressly  so  provided,  was  held  to  apply  to  the  enixrav- 
ing  of  the  notes  of  a  Scotch  bank  ;  the  rational  object  and 
meaning  of  the  excluding  provision  being,  not  that  forgeries 
against  Scotch  banks  might  be  committed  in  England  with 
impunity,  but  that,  when  committed  in  Scotland,  tliey  should 
not  fall  within  the  Act  (c). 

Wlierc  an  Act,  after  transferring  all  duties  of  paving  and 
lighting  from  existing  Commissioners  to  a  Board  of  Works, 
provided  that  all  contracts  with  the  former  should  reniain 
valid,  that  no  action  upon  them  against  the  commissioners 
should  abate,  and  that  all  liabilities  under  such  contracts 
should  be  paid  out  of  rates  to  be  made  by  the  new  Board  ; 
it  was  held,  on  the  ground  of  its  being  the  more  convenient 
course,  that  an  action  on  a  contract  made  with  the  Commis- 
sioners might  be  brought  against  the  Board  (d).     The  20  & 

{(i)  11.    V.    Eastern   Counties  R.  (r)  IJ.   v.  Brackenridge,  L.   K.  1 

Co.,  5  E.  &  B.  974.  25  L.  J.  M.  C.  C.  C.  l:J3.      Comp.  Be  O'Loghlin, 

49.     See  K.  v.  Croko,  Cowp.  80.  L.  R.  G  Cli.  40G. 

{I})  Pickering  v.   ^larsh.  43  L.   J.  (d)  Sinnotl  v.  Whitechapcl.  3  C. 

^I-  C.  143.  B.  N.  S.  074,  27  L.  J.  C.  P.  177. 


328 


UNKEASON,    ETC. 


[§247 


21  Vict.  c.  43,  wliicli  authorizes  a  party  aggrieved  by  a 
decision  of  justices  to  apply  within  three  days  for  a  case,  and 
directs  that  "  at  the  time  of  the  application,"  and  before  the 
case  is  delivered  to  him,  he  shall  enter  into  recognizances 
to  prosecute  the  appeal,  was  held  substantially  complied  with 
if  the  recognizances  were  entered  into  within  three  days, 
though  not  at  the  time  of  the  application  (a).  [So,  under  a 
statute  requiring  an  affidavit  on  appeal  to  be  filed  immediate- 
ly, it  is  in  time  if  filed  the  day  after  judgment.'  And  a 
statute  requiring  a  judge's  certificate  that  an  action  was 
really  brought  to  try  a  right  to  be  filed  immediately  after 
verdict  delivered,  was  held  not  to  mean  as  soon  as  ever  the 
verdict  was  delivered,  but  as  implying  that  the  judge  must, 
of  necessity,  have  some  little  time  for  reflection.']  It  lias 
been  repeatedly  held  that  when  an  Act  gives  an  appeal  to 
the  "next"  sessions,  it  means  not  necessarily  the  next  whieh 
takes  place  in  order  of  time,  or  an  adjournment  of  it  (Z*),  but 
the  next  to  whieh  it  is  practicable  with  fair  diligence  to 
carry  the  appeal  (c).  It  is  obvious  that  a  stricter  construction 
would  often  have  the  effect  of  taking  away  the  appeal  which 
the  Legishiture  intended  to  give."     [A  provision  in  a  statute 


{a)  Chapman  v.  Robinson,  1  E. 
&  E.  25,  28  L.  J.  M.  C.  SO.LWWVt.] 

«  State  V.  Clevenser,  20  Mo.  App. 
()2G. 

''  Sedo-w.,  p.  259,  cit.  Thomi^sou 
V.  Gibson,  8  M.  &  W.  288  ;  Page 
V.  Pearce,  Id.  G77,  but  referring  to 
Grace  v.  Cliurcli,  4  Q.  B.  006 ; 
Shuttleworth  v.  Cocker,  1  M.  &  G. 
829.  See  post,  §  395.  Comp. 
Robertson  v.  Robertson,  L.  R.  8 
P.  D.  96,  tiiat,  whatever  the  mean- 
ing of  the  word  "  on  "miglit  be,  in 
respect  of  the  proximity  of  action 
contemplated  by  it,  it  must  mean 
shortly  after,  if  it  be  not,  indeed, 
conPncd  to  the  time  of  making  the 
decree,  and  it  would  be  difficult  lo 
extend  it  to  a  period  exceeding  a 
year  :  per  Jessel.  31.  R. 

{b)  H.  V.  Sussex.  7  T.  R.  107. 

(c)  R.  V.  Yorkshire.  1  Douij;.  192; 
R.  V.  Dorsetshire.  15  Easi,  200  ;  R. 
V.  Sussex,  15  East.  206  ;  R.  v. 
Essex,  1  B.  &  A.  210  ;  R.  v.  Tliack- 
well,  4  B.  &  C.  62  ;  R.  v.  Devon,  8 
B.   &  C.  640  ;   R.   V.   Sevenoaks*:  7 


Q.  B.  136  ;  R.  v.  Sussex,  4  B.  &  S. 
966,  34  L.  J.  M.  C  69.  See  R.  v. 
TratTord,  15  Q.  B.  200  ;  R.  v. 
AV'atts,  7  A.  &E.  461  ;  R  v.  West 
Riding,  E.  B.  &  E.  713. 

«  But  where  an  act  required  the  en- 
try of  an  appeal  from  tlie  judgment 
of  a  justice  of  the  peace  in  tlic  office 
of  the  prothonotary  of  the  court  of 
common  pleas  on  or  before  the  first 
day  of  the  term  next  after  perfect- 
ing the  appeal,  for  whicii  pur[)Ose 
the  act  allowed  twenty  daj's  after 
entry  of  the  judgment,  it  was  held 
that  tlie  appeal  must  be  tiled  to  the 
next  term,  though  taken  before  the 
expiration  of  the  twentj^  days,  and 
tliougii  the  first  day  of  such  term 
came  before  tlicir  expiration  :  see 
jMoore  v.  Creamei',  3  Penr.  &  W. 
(Pa.)  416.  But  it  did  not  re(iuire 
the  appellant  to  forego  any  of  the 
twenty  days  allowed  him,  in  order 
to  enter  his  appeal  to  the  next  term 
after  the  judgment  had  been  ren- 
dered :  Polls  v.  Staeger,  12  Pa.  St- 
363. 


§  2-i7]  UNREASON,  KTO.  329 

requiring  that  execution  n\K,n  ;i  jiidi^nicnt  rendered  by  a 
justice  of  tlie  peace  "shall  ho  directed  to  tlie  constable  of 
the  ward,  district  or  township  where  the  defendant  resides, 
or  the  next  constable  most  convenient  to  the  defendant,"  it 
Avas  said  tliat  force  must  be  given  as  well  to  the  words 
"  most  convenient "  as  to  the  word  "  next ;  "  there  might  be 
several  districts  adjacent  to  tliat  in  whicii  the  defendant 
lived,  and  to  which  the  word  "  next "  might  apply,  and  in 
such  case  the  selection  of  a  constable  from  one  of  the  dis- 
tricts might  be  determined  by  the  (jncstion  of  convenience, 
of  which  the  magistrate  must  he  the  judge.  Again,  the 
constables  of  such  districts  might  be  unable,  by  reason  of  sick- 
ness or  absence,  to  perform  the  required  duty,  or  disqualified 
bj'  reason  of  interest  or  otherwise,  and  in  all  these  cases 
convenience  or  necessity  might  require  the  selection  of  a  con- 
stable who  was  not  "  next  to  the  defendant."'-']  When  an 
Act  gave  any  person  aggrieved  {a)  by  an  order  of  justices, 
four  months  ''for  making  his  complaint  to  the  Quarter 
Sessions,"  it  was  construed  to  mean,  not  that  the  complaint 
must  be  heard  within  that  time,  but  that  the  appellant  should 
have  that  time  for  notifying  his  intention  to  appeal  ;  other- 
wise he  might  sometimes  be  limited  to  a  few  weeks,  or,  if  no 
sessions  were  held  within  the  four  months,  he  would  be 
deprived  of  his  appeal  altogether  (h).  [The  period  of  twelve 
months,  until  the  expiration  of  which,  under  a  Connecticut 
statute,  a  highway,  after  being  laid  out,  shall  not  be  laid 
open  or  occupied,  is  held  to  begin  to  run  from  the  time 
when,  by  the  combined  measures  of  the  select  men  and  the 
town,  the  road  shall  have  been  legally  established."] 

9  Cora'lh  V.  Lentz,   lOG  Pa.   St.  N.  755,  27  L.  J.  235  ;  R.  v.  Graves, 

C43.     It  was  also  held  in  this  case,  L.  R.  4  Q.  B.  715  ;  Boyce  v.  Hig- 

thut,  -whilst  a  constable  of  another  gins,  14  U.  B.   1.  23  L.  J.  5;  Exp. 

ward,  etc.,  than  as  specified  io  the  Learoyd,  10  Ch.  D.  5.  48  L.  J.  17  ; 

act,  mii^lit,  if  he  chose,  accept  and  E.xp.  Tiioday,  2  Ch.  D.  220  ;  Vcr- 

csecule  such  an  execution  directed  din    v.    Wray.    2   Q.    B.    D.    608  ; 

to  him,  he  was  not  bound  to  do  so,  coinp.  Bochforl  v.  Atherley,  1  Ex. 

and  no  action  could,  in  case  of  his  D.    511;    He   Shaftoe's   Charity,  3 

refusal,    be   maintained   upon    his  App.  872,  47  L.  J.  08. 

official  bond  for  that  cause.  {b)  11.    v.  Essex,  34  L.   J.   M.   C. 

(a)  See  K.  v.  Middlesex.  3  B.  &  41  ;   R.   v.   Middlesex.   G   ^Sl.  &  S. 

Ad.  938  ;   R.  V.  Toole,  1   M.  &  R.  279,     [And  see  ante.  §  77  ;  R.   v. 

728  ;  Wood  v.  Heath,  4  M.  &  Gr.  Hants.  1  B.  &  Ad.  564.] 

918  ;  R.  V.  Chichester,  2!)  L.  J.  Q.  '«  Wolcott   v.    Pond,    19    Conn. 

B.  23  ;  Ilollis  v.  Marshall,  2  It.  &  597. 


330  UNREASON,   ETC.  [§   248 

§  248.  The  statute  wliicli  enacts  tliat  "  a  solicitor"  may 
make  an  agreement  in  writing  with  his  client  respecting  the 
amount  and  manner  of  his  remuneration,"  was  held  to  require 
impliedly  that  the  agreement  should  be  signed  by  the  client ; 
as  otherwise  it  would  be  possible  for  a  solicitor  to  place  a 
document  signed  by  himself  oidy,  and  containing  terms 
favourable  to  him,  before  his  client,  and  then  contend  that 
the  latter  was  bound  by  it  {a). 

Where  one  Act  authorised  the  recovery  of  certain  claims 
before  justices  of  the  peace,  proceedings  before  whom  are 
limited  to  six  months,  and  another  Act  authorised  their 
recovery,  when  not  exceeding  twenty  pounds,  in  the  County^ 
Courts,  where  the  term  of  limitation  is  six  years,  it  was  held 
that  suits  for  them  in  the  latter  Courts  were  limited  to  six 
months,  to  avoid  imputing  to  the  Legislature  the  anomalous 
intention  of  allowing  six  years  for  the  recovery  of  small 
sums,  while  giving  only  six  months  for  large  ones  (5). 

Bankruptcy  Acts  which  vest  the  future  as  well  as  the  pres- 
ent property  of  the  bankrupt  in  the  assignee  or  trustee, 
import  the  necessary  exception,  to  save  him  from  starving, 
of  the  remuneration  which  the  bankrupt  may  earn  by  his 
labour  after  his  bankruptcy,"  and  the  damages  which  he  may 
recover  for  any  personal  injury  (c).  The  Act  which  imposes 
a  penalty  on  the  piracy  of  a  dramatic  work,  or  "any  part 
thereof,"  would  not  be  broken  unless  a  material  and  sub- 
stantial part  was  pirated.  It  is  not  to  be  supposed  that  the 
Legislature  intended  to  punish  the  misappropriation  of  what 
was  of  no  value  {d).  [Nor  would  an  act  directing,  that,  in 
all  actions  for  the  sale  of  any  spirituous,  vinous  or  malt 
liquors,   the    fact    that  such  liquors  or  admixtures  thereof 

(a)  Re  Lewis,  1  Q.  B.  D.  725.  culion  :"  Welcb   v.  Kline,  57  Pa. 

{b)  11  &  12  Vict.  c.  63,  s.  39  ;  24  St.  428,  432.      See  also  Wbcdon  v. 

&  25  Vict.  c.  01,  s.  24  ;  To!teuli:xm  Cliamplin,  59  Barb.  (N.  Y.)  61. 

Board   v.  Rowell.    1    Ex.    1).    514.  {r)  IJeckbam  v.  Drake,  2  II.  L. 

See    also    tbe    judgment    of    tbe  579 ;  i?6' Wilson.  8  Cb.  D.  631,  47 

Excbequer  Cbambers,  inNiobolsou  L.  .T.  Bey.  116. 

V.  Ellis,  E.  B.  &  E.  267,  28  L.   J.  {d)  Cbatterton  v.  Cave,  2  C.  P. 

Q.  B.  238.  D.  42  ;  3  App.  483  ;  Pike  v.  Is  iebo- 

"  "A   man's   creditors  bavc  no  las,  L.  R.  5  Cb.  251  ;  Bradbury  v. 

le,<ral  claim  on  bis  labor,  unless  bis  ITotten.  L.  R.  8  Ex.  1  ;  Plancbe  v, 

earninirs  are  realized  and  invtsled  I'rabam,      4      Biug.      N.     C.     7; 

in  some  kind  of  property,  wbicb  D'Almaine  v.  Boosey,  1  Yo.  &  C» 

can  be  I'eacbed  by  process  of  exe-  301. 


§    249]  UNREASON,    ETC,  331 

were  impure,  vitiated  or  adulterated,  shall  constitute  a  good 
and  sufficient  defense  to  tlic  whole  of  plaintifl's  demand, 
apply,  except  where  the  quality  or  value  of  such  liquors  had 
been  impaired  by  the  impurity,  vitiation  or  adulteration." 

§  249.  [Under  an  act  authorizin<^  the  entry  of  judi^ment 
in  suits  upon  certain  causes  of  action  a<^ainst  the  defendant, 
unless  ;in  affidavit  of  defense  be  tiled  by  him  before  the 
third  Saturday  succeeding  the  return  day  of  the  original 
writ,  it  was  held  that  the  proceeding  was  inapplicable  to  the 
case  of  a  defendant  not  actually  served  with  process  ;  as,  e.  g.y 
in  a  suit  begun  by  foreign  attachment,  where  the  defendant 
was  absent  and  might  not  be  in  court  until  after  the 
expiration  of  the  time  allowed  for  filing  the  affidavit.'* 
An  act  making  it  the  duty  of  the  overseers  of  every  poor- 
district  to  furnish  relief  to  poor  persons  not  having  a  settle- 
ment therein,  "  until  such  person  can  be  removed  to  the 
place  of  his  last  settlement,"  was  held  to  contemplate  a 
removal  with  safety  to  the  pauper's  health  and  life.'*  Where 
an  act  declared  that  "all  judgments,  which,  at  the  time  of 
the  death  of  a  decedent,  shall  be  a  lien  on  his  real  estate, 
shall  continue  to  bind  such  real  estate  during  the  term  of 
five  years  from  his  death,"  it  was  held  that  it  must  be 
interpreted  as  relating  to  lands  of  which  he  was  seized  at 
the  rendition  of  the  judgment,  l)ecause  otherwise  the  statute 
might  be  frustrated  by  a  sudden  alienation  shortly  before 
death."  So,  under  an  act,  that  judgments  against  collecting 
officers  should  be  "  for  the  principal  due,  with  interest  at 
the  rate  of  ten  per  cent,  per  annum  from  the  first  day  of  June 
preceding  and  until  paid,"  it  was  held,  that,  as  the  interest 
was  designed  to  be  a  penalty  for  failure  to  pay  over  at  the 

"  Clobessy    v.   Roedelbeim,  99  '^  Qrant  v.  Ilickox,  64  Pa.    St. 

Pa.  St.  56.     It  is  said,  in  tlie  decis-  334.     See  post.  §  267. 

ion  of  til  is  case,  that  the  mischief  "   Kelly   Tp.    v.  Union    Tp.,    5 

to    he   remedied,    and    tlie   phrase  Walts,   tfc   S.   (Pa.)  535.      Tlie  rc- 

"adnii.\tures     tliereof,"     indicated  moval  of  a  pauper  in  a  condition 

that  tlic  act  did  not  mean  to  pun-  of  health   whicii    forbade   it,    and. 

isb   the   introduction  of   any  sub-  made  an  attempt  at  removal  an  act 

stance,  forciirn  to  and  not  essential  of  cruelty,  and  a  risk  of  life,  it  was- 

in,  the  manufacture  of  pure  liquors,  .said,  would   subject  the  overseers- 

but  only  deteriorating  and  noxious  to  indictment, 

impurities.  '^  Kicholas  v.  Phelps,  15  Pa.  St. 

36. 


332  insrREAsoN,  etc.  [§  249 

time  appointed  bj  law,  the  act  imist  be  construed  to  mean, 
from  the  first  day  of  June  preceding  the  time  when  tlie 
money  should  have  been  paid  into  the  treasury."  Where  an 
ordinance  required  owners  to  pave  in  front  of  their  property, 
and  on  neglect,  after  twenty  day's  notice  "left  or  placed  on 
the  premises,  if  the  owner  was  unknown  or  could  not  be 
found,"  the  commissioner  of  highways  should  pave  and  file 
a  lien  for  the  cost,  and  a  notice  to  pave  was  folded  up  and 
placed  on  the  premises,  under  a  stone  which  completely  cov- 
ered it,  it  was  held  that  this  was  not  a  sufficient  notice  under 
the  ordinance."  A  provision  that  a  person  tried  and  found 
guilty  should  not  be  entitled  to  a  new  trial,  etc.,  "for  any 
of  the  following:  causes,"  was  held  to  mean  '-for  any  one  "  of 
the  causes  enumerated."  Acts  establishing  boom  companies, 
and  imposing  on  the  owners  of  lumber  the  duty  of  paying  toll 
for  the  security  and  preservation  of  their  property  caught 
in  such  booms,  have  been  held  not  to  apply  to  rafts  intended 
to  pass  down  the  riv^er,  but  accidentally  stopped  by  the  boom, 
where  their  owners  neither  sought  nor  desired  its  use  or 
protection.'"  Laws  requiring  affidavits  of  defense  to  be  filed 
in  certain  actions  upon  contracts,  and  entitling  the  plaintiff 
to  judgment  for  default  thereof  within  a  certain  time,  have 
been  uniformly  held  not  to  apph^  to  executors  or  adminis- 
trators, l)ecause,  "  in  no  ordinarj'  case  would  it  be  possible 
for  a  personal  i-epresentativo  to  set  out  on  oath  in  specific 
detail  the  nature  and  incidents  of  a  transaction  to  which  his 
decedent  had  been  a  party,  and  to  which  he  was  a  stranger."'" 
And  an  exception  was  made  in  favor  of  infants  from  the 
general  language,  broad  enough  to  cover  them,  of  a  statute 
requiring  tlie  filing  of  statements  of  claim  to  land,  or '' be 
forever  barred,"  etc.,  because  of  the  hardship  of  any  other 
construction, and  the  omission  of  any  provision  for  the  making 
of  such  statements  by  guardians  and  the  like.^'     Under  an 

"^  Samuels  v.  Com'th,  10  Bush,  person  midit  he  entitled  to  a  new 

(Kv.)  491.  trial  :  Ibid'. 

'"'  Philadelphia  v.  Edwards,  78  '^    Chase  v.    Dwiual,    7  Greeul. 

Pa.  St.  G2.  (Me.)  lU. 

'»  Thur.ston  v.   State,  a  Coldw.  "»  Sevmour  v.  Hubert,  8-3  Pa.  St. 

(Tcnn.)  11.5  ;  .so  that,  if  more  than  34(5,  348. 

one  of   llie   causes  coexisted,  the  •'  Coy  v.  Coy,  1.5  Minn.  119. 


240] 


UNKEASON,    ETC 


act  which  permits  tlie  transfer  of  judgments  from  one 
county  to  another  by  certified  transcript  of  tlie  i-ecord,  and 
directs  that  the  case  may  then  be  proceeded  in  and  the 
judi'inent  and  costs  collected  by  execution,  etc.,  execution 
cannot  be  issued  by  the  court  of  the  county  in  which  the 
transcript  is  filed  without  a  revival  of  the  judgment  there, 
when  none  can  be  issued,  for  want  of  a  revival,  in  the  county 
in  which  the  original  judgment  remains."  Where  a  general 
railroad  law  prohibits  a  railroad  company  from  running  its 
line  through  any  dwelling  house  in  the  occupancy  of  the 
owner  thereof,  without  his  consent,  the  phrase  dwelling 
house  includes  the  curtilage,  so  far  as  necessary,  for  a  ivason- 
able  and  proper  enjoyment  of  the  house  as  a  residence,  in 
view  of  its  location  and  surroundings."  An  exemption  of 
swine  from  attachment,  in  an  act  intended  for  the  protection 
of  poor  debtors,  must,  in  reason,  be  construed  to  include  tl;e 
living  and  dead  and  dressed  animal. °''  Under  an  act  author- 
izing the  laying  out  of  a  road  "from"  Bowdoin  College, 
one  starting  seventeen  rods  from  the  college  buildings  and 
eight  rods  from  the  land  appropriated  to  the  use  of  the 
collego  was  held  well  laid  out."  A  statute  autiiorizino-  the 
abandn>nmcnt  of  a  canal  on  approval  of  the  project  by  at 
least  two-thirds  of  the  stockholders  of  the  company,  was  lield 
satisti'jd  by  tiie  approval  of  a  single  stockholder  who  held 
more  than  two-thirds  of  the  stock. ^^  Under  an  act  directing 
a  cont  ract  to  be  awarded  to  the  "  lowest  bidder,"  the  detei-min- 
ation  >f  the  question  whether  a  bid  is  the  lowest,  reasonably 
Church,  113  Pa.  St 


«2  B<.J!k    V 

200. 

"  0 "Pitt's  App.  (Pa.)  3  Centr. 
Rep.  r,ll.  Corap.  Wells  v.  R.  R. 
Co.,  47  Me.  o-lij.  For  construction 
of  t)ie  woid  "house,"  in  similar 
cot?  n. actions,  see  Bennett  v.  Bit  tie, 
4  Ran'lc,  (Pa.)  331),  342  ;  Roi,aM-s  v. 
Smitli,  4  Pa.  St.  93,  101  ;  Cole  v. 
Ry.  Co.,  27  Beav.  242  ;  Grosvenor 
V.  Ry.  Co.,  26  L.  J..  Ch.  731  ;  King 
V.  Rv.  Co.,  29  Id.  4G2  ;  iMarsou  v. 
Rv.  Co.,  1  Kav  &  J.  34  ;  5  DeG., 
M.  &  G.  851.  "But  under  the  18  »fe 
19  Vict.  c.  128,  ^  9.  providing  that 
no  ground  to  he  used  as,  or  apjiro- 
piiatcd  for,  a  cemetery  shall  he  used 
for  burials  "within  the  distance 
of  one  hundred  yards  from  uuy 


dwelling-house,"  without  the  con- 
sent of  the  hitter's  owner,  les.sce  or 
occupier,  it  is  held  that  the  phrase 
"dwelling-house  "  does  not  include 
the  curtilage,  and  the  one  hundred 
3'ards  must  be  uieasured  fidui  the 
walls  of  the  house  :  Wright  v. 
Wallasey  Local  B'd,  L.  R.  18  Q.B. 
D.  783. 

-'•*  Gibson  v.  Jenney,  15  Mass. 
205.  But  see  for  construction, 
including  onlv  living  turkeys,  etc., 
R.  V.  llalloway,  1  C.  &  P.  "l28  ;  R. 
V.   Edwards,  1  Russ.  &  Ryan.  497. 

'•^  Stanford  v.  Peirce,  7  .Mass. 
458. 

-''  Fredericks  v.  Canal  Co.,  109 
Pa.  St.  50. 


334  UNREASON,    ETC.  [§  250 

involves  a  comparison  not  only  of  figures,  but  of  the  quality 
and  utility  of  the  thing  offered  and  its  adaptability  to  the 
purpose  for  which  it  is  intended  ;"  and  a  direction  to  award 
to  the  "  lowest  responsible  bidder  "  docs  not  refer  to  pecuniary 
responsibility  alone,  but  also  to  judgment  and  skill."  Where 
an  act  provided  that,  upon  the  decision  that  a  pauper  had 
been  improperly  removed,  the  town  to  which  he  was  removed 
Bliould  be  reimbursed  for  the  cost  of  his  support,  it  was  held 
inapplicable  in  a  case,  where,  the  decision  not  being  upon 
the  merits,  the  town  would,  by  a  literal  interpretation,  be 
repaid  the  expense  of  maintaining  its  own  pauper.'"" 

§  250.  [The  Georgia  statute  of  16  March,  1SG9,  requiring 
actions  for  the  enforcement  of  rights  of  individuals  under 
acts  of  incorporation  or  by  operation  of  law,  accrued  prior  to 
June  1,  1S65,  to  be  brought  before  January  1,  1870,  was 
held  not  to  apply  to  claims  against  the  estates  of  decedents, 
BO  lis  to  restrict  or  exclude  the  time  a  previous  statute 
allowed  to  administrators  to  ascertain  the  condition  of  the 
estates  committed  to  their  care,  and  to  creditors  to  file  their 
claims,  it  being  deemed  unreasonable  to  suppose  that  the 
Legislature,  having  already  made  provision  for  these  cases, 
intended  to  repeal  them  by  an  act  aimed  at  the  settlement  of 
affairs  left  in  confusion  by  the  disturbances  of  the  civil  war.'" 
Nor  was  the  general  and  inconclusive  language  of  a  later 
enactment  permitted  to  abrogate  express  exception  from 
jurisdiction  made  by  an  earlier  one,  where  the  effect  would 
liave  been  to  confer  upon  a  court  of  limited  jurisdiction 
power  to  try  Indians  and  others,  strangers  to  civilized  life, 
by  standards  unknown  and  in  reason  inapplicable  to  them." 
Upon  the  same  ground,  the  reasonableness  of  the  construction 
adopted,  it  was  held  that,  under  an  act "  giving  a  summary 
remedy  to  landlords,  before  justices  of  the  peace,  to  regain 
possession    of   the    property    demised    by    them    upon    the 

"   Cleveland,   etc.,   Tel.    Co.    v.  «  Ryegate  v.  Wjirdsboio,  30  Vt. 

IMctrop.    Fire  Comm'rs,   55  Barb.  746.     See  post,  S  -66. 

(N.  Y.)  288;  7  Abb.  Pr.  N.  S.  49;  ^^^  Mills  v.   Scoit.   99   U.    S.    25, 

and    see   Frost  v.    Fay,    3    Lans.  approving     Moravian     Sem'y     v. 

(N.  Y.)  398.  Atwood,  50  Ga.  382  ;  Edwards  v. 

-s  Doiiiilass  V.   Com'lb,   108   Pa.  Ross.  58  Id.  147. 

St.  559  ;  Com'tb  v.  ]\Iitcbell,  82  Id.  »'  E.xp.  Crow  Dog,  109  U.  S.  556. 

343  ;    Findlcy   v.    Pittsburgb,    Id.  ^^  14  Dec.  1863,  P.  L.  1125,  Pa. 
351. 


§  251]  UNREASON,    ETC.  335 

expiration  of  the  lease,  and  notice,  the  provision  in  former 
acts,  which  ousted  the  jurisdiction  of  the  justice  upon  the 
filing  of  an  affidavit  by  defendant  that  the  title  to  real  estate 
would  come  in  question,  was  inapplicable." 

§  251.  Presumption  against  Inconvenience. — [It  is  Said,  that, 
where  the  intention  of  the  Legislature  or  the  law  is 
doubtful  and  not  clear,  the  judges  ought  to  interpret  the 
law  to  be  what  is  most  consonant  to  equity  and  least  inconven- 
ient." This  is  true  most  particularly  where  the  inconvenience 
would  result  to  the  public, — an  infraction  of  sound  and 
acknowledged  principles  of  national  or  state  policy  f^ — a 
jeopardizing  or  sacrifice  of  great  public  interests  f — a  public 
mischief,"  and  the  like.  Thus,  it  was  held,  that,  under  a 
statute  authorizing  the  attachment  of  moneys  due  to  a 
defendant  in  the  hands  of  the  person  owing  them  to  him, 
money  held  by  a  person  in  his  official  capacity  as  treasurer  of, 
€.  g.,  a  board  of  school  directors,  could  not  be  attached  for 
the  satisfaction  of  a  debt  due  by  the  school  district.'"  "  Great 
public  inconvenience  would  ensue,  if  money  could  be  thus 
arrested  in  the  hands  of  officers,  and  they  be  made  liable  to 
all  the  delay,  embarrassment  and  trouble  that  would  ensue, 
from  being  stopped  in  the  routine  of  their  business."'*  And 
similarly,  a  statute  permitting  attachments  on  judgments  to 
be  laid  in  the  hands  of  any  "  person  or  persons  whatever, 
corporate  or  sole,"  was  held  not  to  include  a  municipal 
corporation."  It  is  perhaps  most  frequently  in  the  construc- 
tion of  legislative  grants  to  individuals  and  corporations  that 
eourts  are  called  upon  to  protect  the  rights  of  citizens  and  the 

=*3  Liviugood  V.  Moyer,  2  Woodw.  with  the  custody  of  public  money, 

<Pa.)  65  ;  and  see  Mohan  v.  Butler,  and  to  be  analoiioiis  to  that  \vlii(;li 

(Pa.)  3  Centr.  Rep.  407.  forbids  tlie  attachment  of  moneys 

'^  Keiiin   v.   Bull,   1  Dall.   (Pa.)  in  the  hands  of  a  sherill  or   pro- 

175,  178  ;  Jersey  Co.  v.  Daviijon,  2d  thonotary. 

N.  J.  L.  415.  •"*  Baltimore  v.  Root,  8  .Md.  95. 

25  See  Opin.  of  Justices,  7  Mass.  Indeed,  in  the   construction  of  an 

523.  act   authorizing    process    to    issue 

2«  People  V.    Canal   Comm'rs,  4  against  defendants  residing  in  for- 

111.  153.  eign   counties,    it    was   said    that, 

^^   Smith  V.    People,    47  N.   Y.  onlinarily,  a  statute,  speaking   in 

330.  general  terms  of  plainlitfs  and  de- 

s*  Bulkley  v.  Eckcrt,  3  Pa.  St.  fendants,  applies  to  persons  only, 

3G8.  not  to  states,  counties  and  nuinici- 

39  Ibid.      The   principle  is  there  pal    corporations,    unless    uamrd  : 

stated  to  extend  to  all  other  miuiic-  Schuyler  Co.  v.  Mercer  Co.,  9  111. 

ipal  and    stale    olticers    entrusted  28. 


33G  UNREASON,    ETC.  [§  251 

public,  and  to  apply  the  doctrine  of  tlie  presumption  against 
an  intention  to  give  rise  to  a  public  inconvenience.  General 
words  of  incorporation  in  a  statute  are  not  to  be  construed 
contrary  to  plain  reason  and  right  ^^'  nor  acts  for  the  accom- 
modation of  citizens  or  corporations,  so  as  to  affect  injuriously 
the  rights  or  privileges  of  otiiers."  Indeed,  it  is  said  that 
every  legislatives  grant  is  made  with  the  implied  reservation 
that  it  shall  not  injure  others,"  and  the  rights  granted  are 
subordinate  to  considerations  of  jMiblic  safety  and  conveni- 
ence.''^ Thus  the  grant  of  a  i-ight  to  build  a  bridge  docs  not, 
without  an  express  provision  to  that  effect,  give  tlie  right  to 
obstruct  navigation."  And  the  statuory  grant  of  a  right  to 
lay  pipes  in  public  streets  is  subject  to  the  power  of  the 
municipality  to  order  them  lowered  to  suit  a  clianged  grade.^® 
As  the  rule  is  true  with  reference  to  the  public  and  large 
classes  of  citizens,  so  it  is  true,  in  a  more  limited  sense, 
with  reference  to  individual  rights.  Some  instances  of  its 
operation  in  this  respect  have  been  given  in  pi'cceding 
sections.*'  As  regards  the  present  connection,  most  individual 
rights  are  capable  of  being  compensated  for  if  destroyed  or 
abridged.  And  in  general,  therefore,  it  may  be  said  to  be  a 
proper  rule  of  construction  that  a  statute  is  not  to  be  so  inter- 
preted as  to  interfere  with,  or  injure  the  rights  of,  persons 
without  compensation,  nrdcss  there  is  no  escape  from  such 
construction."  Accordingly  in  the  Lands  Chiuses  Act,  it 
was  said  that  the  word  "hereditaments"  ought  to  be  held 
to  include  incorporeal  hereditaments,  "  not  merely  on 
account  of  the  generality  of  the  words,  but  also  because  it 
would  be  expedient,"  easements  being  entitled  to  protection." 
But  it  is  obvious  that  the  mere  individual  hardship  of  a  case 
cannot  always,  or  even  ordinarily,  become  a  feature  in  the 

■»»  Matthews  v.  Caldwell,  2  Disney,        '•^  Selman  v.  WolF,  27  Tex.  68. 
(O.)  279.  '"'  Jersey  City  v.  Hudson,  18  N. 

•*-  See  Wales  v.  Stetson,  2  Mass.  J.  Eq.  420. 
143;  Hood  V.  Dighton  Biidne,  3  Id.         "'■'  See,  e.  g..  Swift's  App.,  supra, 

263  ;   Coolidge  v.  William.s',  4  Id.  i?  249. 
140  ;  Perry  v.  Wilson,  7  Id.  393.  ^s  See  Atty.-Gen.   v.    Horner,  L. 

"^Pitlsb.,  etc.,  K.    R.   Co.   v.  S.  H.  14  Q.  B.   D.  2^1,  per  Brett,  M. 

W.   Pa.  Ily.   Co.,  77  Pa.  St.   173,  K. 

186.      And    see   Coni'ih  v.   Canal        -"^  Great  West.  Ry.  Co.  v.  Swiu- 

Co.,  66  Id.  41.  don,  etc.,  Ky.   Co.,   L.   It.   9  App. 

''•»  Pitlsh.,  etc.,  R.    R.   Co.   v.  S.  Cas.    787,  per  Lord  Bramwell,    at 

W.  Pa.  l{y.  Co.,  supra,  pp.  808-809. 


§  252]  UNREASON,    ETC.  337 

construction  of  an  act."  And,  in  general,  the  arj^nnient  from 
inconvenience  must  be  cautiously  applied.  It  is  said  that 
it  can  never  have  weight  except  in  doubtful  cases,"  and 
that  it  is  a  most  dangerous  doctrine;"  though  if,  by  reading 
an  enactment  in  its  ordinary  sense,  there  results  an  inconven- 
ience not  only  great,  but  what  may  be  called  an  absurd 
inconvenience,  whereas,  if  read  in  a  manner  in  which,  whilst 
it  is  not  its  ordinary  sense,  it  is  yet  capable  of  being  read,  it 
leads  to  no  inconvenience  at  all,  this,  it  is  admitted,  v.'ould 
constitute  a  reason  for  not  reading  it  according  to  its 
ordinary  grammatical  meaning."] 

§  252.  A  construction  which  facilitated  the  evasion  of  a, 
statute  would,  on  similar  grounds  of  inconvenience,  be 
avoided.  Thus,  an  Act  which  forbade  an  innkeeper  to  suffer 
any  gaming ''in  his  house  or  premises,"  was  construed  as 
extending  to  gaming  by  himself  and  his  personal  friends  in 
his  private  rooms  in  the  licensed  premises  ;  for  a  construction 
which  limited  the  prohibition  to  the  guests  in  the  public 
rooms  would  have  opened  the  door  to  collusion  and 
evasion  {a). 

And  yet,  a  construction  facilitating  evasion,  even  to  the 
extent  of  defrauding  the  revenue,  may  be  justified  and 
required  by  considerations  of  convenience,  as  in  the  case  of 
Stamp  Acts  ;  where  the  question  whether  the  document  is 
sufficiently  stamped  depends  solely  on  what  appears  on  the 
face  of  the  document,  to  the  exclusion  of  all  extrinsic 
evidence  to  prove  the  contrary;  for,  to  admit  evidence  to 
invalidate  it,  would  lead  to  the  intolerable  inconvenience  of 
holding  a  collateral  inquiry,  to  the  interruption  of  the  trial 
of  the  cause  in  which  the  paper  was  tendered  (5). 

»"  See  post,  §  266.  5  C.  P.  D.  50  ;  and  see  per  Brett. 

"  Gore  V.  Brazier,  3  Mass.  523.  L.  J.,  in  lies  v.  "West  Ilara  Union, 

See  ante,  §  263.  8  Q.  B.  D.  69,  51  L.  J.  24.     Comp. 

"    R.    V.    Tonbridge   Overseers,  Briii;den   v.  Hciijhes,  1  Q.    B.    D. 

L.  R.  13  Q.  B.  D.  342.  330;  Tassell  v.  Ovcnden,  2Id.  383; 

"  lb.,  per  Brett,  M.  R.     See  for  Lester  v.  Torrons,  Id.  403;  Boslcy 

an   instance  of  the  application  of  v.  Davics,  1  Id.  84. 
the  argument  from  inconvenience        {b)  Whisllor  v.  Forster,  14  C.  B. 

to  construction  of  an  obscure  act,  N.  S.  248  ;  Austin  v.  Buuyard.  G 

Duquesne  Sav.  B'k's  App.,  96  Pa.  B.  &  S.  687  ;  Galty  v.  Fry,  2  Ex. 

St.  298.  D.  265  ;  comp.  Clarke  v.  Roche,  41 

(a)  Patten  v.  Rhymer,  3   E.    &  L.  J.  Q.  B.  141. 
E.  1,  29  L.  J.  189;  Corbet  v.  Haigh, 

22 


338  uxREASox,  ETC.  [§§  253,  254 

§  253.  Joint  and  Several  Offences  and  Penalties.    Complex  Act. — 

Acts  which  impose  ;i  })ecuiii:iry  pe'iialt)'  have  soinctiiues  given 
rise  to  a  question,  when  there  were  two  or  more  offenders, 
-wlicther  one  joint  or  several  separate  penalties  were  intended  ; 
and  this,  where  the  Act  has  left  it  open  to  doubt,  has  been 
said  to  depend  on  whether  the  offence  was  in  its  nature  joint  or 
several.  When  the  offence  is  one  in  which  every  ])articipator 
is  justly  punishable  in  proportion  to  the  part  which  he  took  in 
it,  the  inference  would  obviously  be  that  a  separate  penalty  on 
each  was  intended.  In  the  offence  of  assaultino-  and  resisting  a 
custom-house  officer,  one  may  resist,  another  molest,  a  third 
run  away  with  the  goods ;  all  are  distinct  acts,  each  a  separate 
offence,  and  each  offender  would  be  liable  for  his  own  separate 
offence  {a).  So,  under  the  Toleration  Act,  which  enacts 
that  if  any  person  or  persons  maliciously  disturb  a  congre- 
gation, such  "person  or  persons"  shall,  on  conviction  of 
"  the  said  offence,"  be  liable  to  a  penalty  of  201.,  it  was  held 
that  every  person  engaged  in  such  a  disturbance  would  be 
liable  to  a  separate  penalty  (h). 

So,  where  two  men  were  convicted  of  an  assault  and 
sentenced  to  pay  one  penalty,  under  the  9  Geo.  4,  e.  31,  the 
conviction  was  quashed  ;  because  a  penalty  ought  to  have 
been  imposed  on  each  offender  several!}',  the  offence  being 
in  its  nature  several  (c).  And  under  the  1  &  2  Will.  4,  c. 
32,  s.  30,  which  enacts  that  if"  any  person"  shall  trespass  in 
the  daytime  on  land  in  search  of  game,  "such  persons"  shall 
be  liable  to  a  penalty  of  two  pounds,  every  offender  is  liable 
to  a  separate  penalty  {d). 

§  254.  But  it  has  been  said  that  where  the  offence  is 
in  its  nature  single, — [and  if  the  statute  contemplates  one 
offence,  in  the  commission  of  which  two  classes  of  offenders 
may  be  engaged,  an  offence  by  both  is  one  and  entire"] — 
and   is  punished  by  a  pecuniary   pejialty,  only   one  penalty 

(a)  Per  Lord  ]\Iansfield  in  R.  v.  (r)  Moigan  v.  Brown,  4  A.  &  E. 

Clarke,  Cowp.  610.     [S(!c  to  siimo  515.     See  also  R.  v.  Martin,  5  Q. 

effect:  Sedijw.,  at  p.  79.  eitiug,  in  B.  591. 

addition,  Palmer  V.  Couly,  4  Denio.  (c/)  Maybew  v.   Wardley,  14  C. 

(N.  Y.)  376;  Conley  v.  Palmer,  2  V,.  N.  8.  550. 

Corns.  (N.  Y.)  182.]  ^'  People  v.  Kobb,  3  Abb.  App. 

(i)  R.  V.  Ilube,  5  T.  R.  513.  Dec.  (N.  Y.)  529. 


§  25-i]  UNREASON,    ETC.  330 

can   be   imposed  on    all   the  oHenders   jointly;    that   if  it 
is   the  offence,   and   not    the  offender,  that  is  visited  with 
punishment  by  the  statute,  only  one  penalty  is   incurred, 
liowever  large  may  be  the  number  of  persons  who  incurred 
it."     Thus  [an  act  imposing  a  penalty  on  managers  of  the- 
atrical exhibitions  without  license,  and  on  the  owner,  etc., 
of  the  buildings  let  therefor,  created  but  one  offence,  and 
but  a  single  penalty,  and  a  complaint  against  both  for  the 
penalty  stated  but  one  cause  of  action."     Thus,  too,]  under 
the  statute  of  Anne,  which  enacted  that  if  any  unqualified 
"  person  or  persons "  kept  or  used  hounds  for   destroying 
game,  ''  the  person  or  persons  "  so  offending  should  forfeit 
five  pounds,  it  was  held  that  to  keep  or  use  a  greyhound  for 
such  a  purpose  was  punishable  by  one  penalty  only,  whether 
the  dog   was  kept   or  used  by  one   or  by  several  persons. 
Only  one  dog  was  kept,  it  was  said,  and  only  one  penalty, 
falling  on  all  the  offenders  jointly,  was  imposable  (a).     The 
decision  has  been  perhaps   better  defended  on  the  ground 
that  the  Act,  in  speaking  of  "  persons"  in  the  plural,  and 
providing  that  for   such  "  offence,"  in    the    singular,  they 
should  pay  five  pounds,  and  not  five  pounds  '-each,"  one  joint 
offence  and  penalty  were  contemplated  (h).     In  an  old  case 
cited  in  support  of  this  construction,  it  was  held  that  the 
statute    1    &    2    Phil.  &  M.  c.  12,    which    prohibited    the 
impounding  of  a  distress  in  a  wrong  place,  "  upon  pain  every 
person  offending  should  forfeit  to  the  party  grieved  for  every 
such  ofl'ence"a  hundred  shillings  and  treble  damages,  gave 
only  one  penalty  against  three  persons  (c).     But    although 
this  decision  is  said  to  have  been  based  on  the  ground  that 
the  offence  was  one  only,  and  joint,  the  penalty  was  recover- 
able only  by  the  party  grieved,  and  was  consequently  to  be 
regarded  as  a  compensation  to  him,  not  as  a  punishment  on 

"  See  to  same  effect,  Sedgw.,  at  Mod.  26  ;  R.  v.  Bleasdale,  4  T.  R. 

p.  79,  citing  Warren  v.  Doolittle,  809. 

5   Cow.   (N.    Y.)  GTS;  Palmer  v.  (b)  Per  Alderson.    B-,  in   R.    v. 

Conly,  supra  ;  Conley  v.  Palmer,  Dean,  13  M.  &  W.  42. 

supra.  (c)  Partridge    v.    Naylor,    Cro. 

^*  People  V.  Kobb,  supra.  Eliz.  480,  cited  in   R.  "v.  Clarke, 

(a)   llardyman    v.    Whitaker,   2  Cowp.  610;   R.  v.  King,   1  Salk. 

East,  573n.;   R.   v.   Matlliews,  10  182. 


340  UNREASON,    ETC.  [§  255- 

tlie  offenders  {a).  Yiewed  in  this  light,  it  is  clear  that  only 
one  penalty  could  be  recovered  ;  for  the  iujnry  was  the  same, 
whether  it  was  done  by  one  or  by  several  persons ;  and  it 
could  hardly  have  been  intended  that  the  pecuniary  com- 
pensation for  a  wrong  should  vary  in  amount  with  the 
number  of  persons  concerned  in  doing  it. 

In  referring  to  cases  of  this  kind,  Lord  Mansfield  observed 
that  if  partridges  were  netted  by  night,  two  or  three  or  more 
men  might  draw  the  net,  but  still  it  constituted  but  one 
offence;  and  that  killing  a  hare  was  but  one  offence,  whether 
one  killed  it  or  twenty,  and  that  it  could  not  be  killed  more 
than  once  (b).  But  however  pertinent  such  considerations 
might  be  in  measuring  the  damage  done  to  the  owner  of  the 
game,  they  seem  less  applicable  to  the  question  of  punishing, 
on  public  grounds,  a  breach  of  the  law.  The  question 
v;hether  the  offence  was  joint  or  several  evidently  arose,  not 
from  the  nature  of  the  offence,  but  from  the  nature  of  the 
penalty.  If  the  penalty  had  l:)een  corporal  instead  of 
pecuniary,  the  distinction  between  joint  and  several  offences 
could  hardly  have  occurred  ;  for  it  would  have  been  found 
difficult  to  appl}'-  the  rule  of  one  joint  penalty  to  two 
offeiiders  sentenced  to  five  weeks'  imprisonment  or  twenty- 
five  lashes.  It  would  seem  that  the  question  whether  the 
penalty  is  to  be  understood  as  separate  or  joint,  where  the 
Act  is  not  explicit,  would  be  better  governed  by  the 
consideration  whether  the  penalty  was  intended  as  compen- 
sation for  a  private  wrong,  or  as  a  punishment  for  an  offence 
against  public  justice." 

§  255.  [Similarly,  where  the  penalty  is  imposed  upon 
a  complex  act,  or  several  acts,  constituting,  in  fact, 
but  a  single  offence.  Thus,  where  an  act  of  Congress 
imposed  a  penalty  upon  any  person  using  "  any  still  or 
stills"  in  distilling  spirituous  liquors,  without  having  a 
license  therefor,  it  was  held  that  the  use  of  two  stills  sub- 
jected such  a  person  to  but  a  single,  not  the  double,  penalty, 
the  use  of  the  still  or  stills  being  but  a  single  act,  for  which. 


(a)  See  ex.  gr.  Stevens  v.  Jea-         (b)  In  R.  v.  Clarke,  Cowp.  613. 
cocke,  1  Q.  B.  731.  "  See  post,  §  259. 


;§  25G]  I  UNREASON,    ETC.  341 

one  single  penalty  only  could  be  recovered."  So,  where  an 
•  act  provided  that  a  person  selling  liquors  at  retail  without 
license,  or  selling"  such  to  be  drunk  at  his  house  without 
entering  into  a  recognizance  prescribed,  should,  for  each 
offence,  forfeit  $25,  it  was  held  that  only  one  penalty  of 
$25  could  be  incurred  for  each  of  these  two  offences,  though 
it  was  proved,  e.  g.,  that  the  offender  had  sold  liquor  to  five 
several  persons  at  five  several  times."  So  there  can  be  but 
one  violation  by  the  same  person  on  the  same  day  of  an  act 
prohibiting  and  punishing  the  "performing  any  worldly 
employment  or  business  whatsoever"  on  Sunday/"] 

§  256.  It  is  hardly  necessary  to  add  that  all  such  con- 
siderations are  immaterial  where  the  language  of  the  Act 
is  not  open  to  doubt.  Thus,  where  it  was  enacted  that  > 
■*'  every  person "  who  assisted  in  unshipping  or  conceal- 
ing prohibited  goods  should  foi'feit  treble  their  value  or 
100^.,  at  the  election  of  the  Commissioners  of  Customs,  it 
was  held  that  every  person  concerned  in  the  offence  was 
liable  to  a  separate  penalty  {a) ;  although  undoubtedly  the 
offence  was  as  joint  in  its  nature  as  in  the  case  of  the  wrong- 
ful removal  of  the  distress  {b).  [And  so  as  to  the  severable- 
Tiess  of  the  offences.  Thus,  where  an  act  which  made 
•brokers  and  private  bankers  failing  to  make  a  report, 
required  by  the  second  section,  of  their  names,  place  of  busi- 
ness and  capital  employed,  and  an  annual  return,  required 
by  the  first  section,  of  the  profits  of  their  business,  liable  to 
a  penalty  "  for  every  such  neglect  or  refusal,"  it  was  held 
that  separate  penalties  were  to  be  imposed  upon  the  neglect 
to  make  the  report,  and  upon  the  neglect  to  make  the 
j'eturn.  "  Each  is  indispensable — the  report,  that  it  may  be 
known  to  the  Commonwealth  who  is  liable  to  taxation  ;  the 
retu^'n,  that  the  means  of  assessing  the  tax  may  be  fur- 
nished. The  report  is  once  for  all  time  the  party  may  con- 
tinue id  business  ;  the  returns  annually  until  he  ceases.      It 

«8  Buckwaller  v.  U.  S.,  11  Serg.  Com'th.  2  Pears.  (Pa.)  213  ;  Pteiff 

&  R.  (Pa.)  193.  V.  Com'th,  43  Leg.  Int.  (Pa.)  90. 

69  Washburn  v.MoInroy,  7  Johns.  («)  3  &   4  W.  4,  o.    63;  R.    v. 

(N.  Y.)  134.  Dean,  13  M.  &  W.  140. 

*"  Crepps   V.    Durden,  2   Cowp.  {h)   Partridge    v.    Kaylor,    Cm. 

640 ;    Friedeboru  v.    Com'th,   113  Eliz.  480. 
-Pa.  St.  243,  overruling  Duncan  v. 


342  UNREASON,    ETC.  [§  25 T 

is  clear  tliat  the  offences  being  different  in  kind,  independent 
in  act,  and  distinct  in  time,  each  is  liable  to  pnnishinent. 
When  the  Lcgislalnre,  therefore,  said,  every  snch  neglect  or 
refusal  should  be  the  subject  of  a  penalty,  it  becomes  very 
plain  it  did  not  refer  to  a  joint  neglect  of  several  acts  impos- 
sible of  simultaneous  performance.  Had  the  word  '  every  ' 
been  omitted,  the  language  might  have  been  dubious ;  but 
with  it  before  us,  as  a  part  of  the  very  letter  of  the  act,  we 
are  admonished  by  the  reference  ['  such ']  to  resort  to  the 
separate  sections  to  ascertain  the  neglect  or  refusal  referred  to^ 
and  thus  compelled  to  give  the  distrilnitive  word  'every' 
a  reference  to  each:  reddendum  singula  singulis."*' 

§  257.  Actions  for  Penalty  where  Several  are  Aggrieved. — 
[The  exact  converse  of  the  question  above  discussed  arises 
where  the  statute  imposes  a  penalty  for  an  offence,  and 
gives  a  right  of  action  for  the  recovery  thereof  to  several 
persons  affected  by  its  commission.  Has  each  of  these  per- 
sons a  right  to  sue  for  the  same  ?  or,  in  other  words,  may 
the  penalty  be  doubled,  trippled,  etc.,  according  to  the  num- 
ber of  the  persons  affected  ?  It  would  seem  that  the  solu- 
tion of  the  question  is  to  be  governed  also  "  by  the  conside- 
ration whether  the  penalty  was  intended  as  compensation 
for  a  private  wrong,  or  as  a  punishment  for  an  offence" 
against  the  public,""  but  with  the  opposite  result.  Thus, 
where  an  act  provided,  that  if  any  justice  of  the  peace  should 
join  in  marriage  "any  person  or  persons,"  without  previous 
publication  as  required  by  the  act,  he  should,  "  for  every 
such  offence,"  forfeit  the  sum  of  fifty  pounds,  to  be  recov- 
ered "  by  the  person  or  persons  grieved,  if  they  will  sue  for 
the  same," — the  "  persons  grieved  "  being  the  parents  of  the 
parties  joined  in  marriage.  It  was  held  that  only  one  pen- 
alty of  fifty  pounds  could  be  recovered  against  a  justice  for 
joining  two  persons  in  marriage,  and  that  a  recovery  by  the 
parent  of  one  of  the  parties  barred  an  action  for  it  by  the 
parent  of  the  other."     "  It  appears  to  me,"   said   Mr.  Chief 

«i  Cora'th   V.  Cooke,  50  Pa.  St.  R.  (Pa.)  287  ;  Burns  v.  Bryan,  1 

201.  207-8.  Pitts.   (Pa.)  191,  unless  the   prior 

"-  See  unte.  §  255.  iudiimcnt  was  the  result  of  collu- 

«3  Hill   V.  Williams,  14  Serg.  &  sion":  Ibid. 


I  258]  UNREASON,    ETC.  343 

Justice  Tilgliman,"  "  that  the  act  of  the  justice  in  marrying 
any  persons  .  .  is  the  offence  on  which  the  penalty  is 
inflicted,  and  that  it  is  but  one  offence,  although  two  persons 
are  joined  in  marriage,  and  the  parents  of  each  may  be 
grieved  by  it.  The  object  of  the  law  was  not  so  much  to 
make  a  compensation  to  the  injured  parents  ...  as  to  deter 
all  persons  from  being  accessory  to  these  clandestine  mar- 
riao-es  .  .  .  Where  the  parents  of  both  man  and  woman  are 
grieved  by  the  marriage,  it  is  much  more  reasonable  to  say, 
that  both  may  join  in  the  action  and  share  the  penalty,  than 
that  the  justice  shall  pay  a  hundred  pounds  where  the  law 
has  said  he  shall  pay  fifty  pounds."" 

§  258.  Presumption  against  Injustice — Whenever  the  lan- 
guage admits  of  two  constructions,  it  is  obvious  that  the 
more  reasonable  of  tlie  two  should  be  adopted  as  that  which 
the  Legislature  intended  (a).  [If  the  words  of  a  statute, 
though  capable  of  an  interpretation  which  would  work 
manifest  injustice,  can  possibly,  within  the  bounds  of  gram- 
matical construction  and  reasonable  interpretation,  be  other- 
wise construed,  the  court  ought  not  to  attribute  to  the 
Legislature  an  intention  to  do  what  is  a  clear,  manifest  and 
gross  injustice.'"  On  the  contrary,  the  presumption  always 
is,  where  the  design  of  an  act  is  not  plainly  apparent,  that 
the  Legislature  intended  the  most  reasonable  and  beneficial 
interpretation  to  be  placed  upon  it."  It  is  obvious  that  the 
administration  of  justice  requires  something  more  than  the 
mere  application  of  the  letter  of  the  law,  designed  for  some 
particular  class  of  ordinary  cases,  to  all  others,  however 
modified  by  accident  or  withdrawn  by  extraordinary  circuin- 

«*  In  Hill  V.  Williams,  supra,  at  and  R.  v.  Land  Tax  Com.,  3  E.   & 

p.  288.  B.  716  ;  per  Keating,  J.,  in  Boon 

85  The  person  first  bringing  an  v.  Howard,  L.  R.  9"C.  P.  308  ;  ^^^r 
action  for  a  statutory  penalty  Brett,  L.  .J.,  in  R.  v.  Monck,  2  Q. 
acquires  a  right  to  it  which  no  B.  D.  555  ;  Smith  v.  G.  W.  R.  Co., 
other  common  informer  can  divest;  3  App.  165  ;  pe?-  Lord  Blackburn, 
so  that,  while  the  former  action  is  in  Rothes  v.  Kirkaldy  Commission- 
pending,  a  snbseqnent  writ  is  bad  ers.  7  App.  702. 
ab  initi'o  :  Dozi"r  v.  WW  Hams,  47  ^^  Plumstead  B'd  of  "Works  v. 
Miss.  605.  But,  until  reduced  to  Spackman.  L.  R.  13  Q.  B.  D.  878, 
judgment,  there  is  no  vested  right  per  Brett,  M.  R. 
in  the  penalty  in  any  one:  State  "  Richards  v.  Dagiiet,  4  Mass. 
V.  Youmans,  5  Ind.  380.  534,  537  ;  Somerset  v.  Dighton,  12 

(rt)  Per  Lord  Campbell,  in  R.  v.  Id.  383,  385. 
Skeen,  Bell,  97,  28  L.  J.  M.  C.  98, 


34i  CNKEASON,    ETC.  [§  25S 

stances  from  the  spirit  of  its  enactment,"  It  follows  that 
"general  terms  should  be  so  limited  in  their  application  as 
not  to  lead  to  injustice,  oppression,  or  an  absurd  conse- 
quence." It  will  alwa3's,  therefore,  be  presumed  that  the 
Legislature  intended  exceptions  to  its  language  which  would 
avoid  results  of  tliis  character.  The  reason  of  the  law  in 
such  cases  should  prevail  over  its  letter.""]  Thus,  where  a 
by-law  authorized  the  Poultcrs'  Company  to  line  "all" 
poulters  in  London  or  "  within  seven  miles  round,"  who  i-e- 
fused  to  be  admitted  into  their  com  pan}',  it  was  held  that, 
inasmuch  as  no  poulter  could  h^gally  l^elong  to  the  company 
who  was  not  also  a  freeman  of  the  City,  the  by- law  was  to 
be  construed  as  limited  to  those  i)oulters  who  were  also  free- 
men ;  to  avoid  the  injustice  of  punishing  men  for  refusing 
to  enter  into  a  company  to  wdiich  they  could  not  legally 
belong  {a).  The  Merchant  Shipping  Act  of  1873,  which 
enacts  that  if,  "  in  any  case  of  collision,"  it  is  proved  that  any 
of  the  regulations  for  preventing  collisions  had  been  infringed, 
the  ship  which  infringed  them  shall  be  deemed  in  fault, 
unless  the  circumstances  justified  it,  would  apply  only  to 
cases  where  the  infringement  could  have  contributed  to  the 
collision,  but  not  where  it  could  not  possibly  have  done  so 
(J);  just  as  an  Act  which  imposes  a  penalty  for  piloting  a 
ship  down  the  Thames  without  license,  is  evidently  limited 
to  piloting  on  a  voyage,  and  would  not  applj'  to  a  person  in 
charge  of  a  ship  when  merely  shifting  from  one  wharf  to 
another  to  unload  the  cargo  (c).  An  Act  which  provided 
that  no  writ  or  process  should  issue  for  anything  done  under 
it  but  after  a  month's  notice,  would  not  apply  to  proceed- 
ings for  an  injunction  ;  for  if  it  did,  the  wrong  might  be 
irremediable,  which  conid  not  be  intended  {d).  Besides, 
the  object  of  the  ])rovision  was  only  to  give  the  defendant 

«8  Clark's  Succession,  11  La.  An.  Exp.  Ellis,  11  Cal.  222  ;  Bish.,  T^r. 

124.  L..^  93. 

^'  Or  to  absurdity,  injustice,  con-         {a)  Poulters'  Co.    v.   Pliillips,  6 

tradiction.     or    unreason,    all    of  Bins;.    N.    C.    314;    Dimsdalc    v. 

which  should  be,  if  possible,  avoid-  Saddler's  Co..  32  L.  J.  Q.  B.  337. 
ed  in  the   construction  :  Hunt   v.  {h)   3(5   &   37  Vict.   c.  85,  s.    17. 

R.   R.    Co.    (Ind.)   11  West.   Rep.  The  Euglislinian,  3  P.  D.  18  ;   The 

107;  Sawyer  V.  Slate  (Ohio)  lb.  2(52.  Ma<?nol,  The  Fanny  (^arvill,  L.  R. 

'0  U.  S.  V.    Kirby,  7  Wail.  4S2,  4  A.  &  E.  417,  44  L.  J.  Adni.  34- 
480-7  ;   and  see  to  similar  elTcct  :  (c)  R.  v.  Laniljc,  5  T.  R.  76. 

Reiche    v.    Smytlie,    13    Id.    102;         {d)     Atty.-Genl.      v.      Ilackaey 

Board,  L.  R.  20  Eq.  G26. 


^  259]  UNKl' ASOX,     KTC.  345 

time  to  make  amends  before  he  was  sued  witli  that  object 
{a).  The  12  &  13  Yict.  e.  92,  s.  5,  which  requires  "  every 
person,"  who  impounds  an  animal,  or  causes  it  to  be 
impounded  or  confined,  to  supply  it  with  food,  would  not 
apply  to  the  keeper  of  the  pound  {/)). 

The  enactment  in  the  Licensing  Act  of  1872,  that  "every 
person  found  drunk  on  licensed  ])rcmises  "  should  be  liable 
to  a  penalty,  though  literally  wide  enough  to  include  the 
publican  wlio  had  got  drunk  anywhere,  and  was  found  in 
that  condition  in  his  bed  after  the  house  was  closed,  would 
l)e  construed,  according  to  the  manifest  object  of  the  Act,  as 
confined  to  persons  found  on  the  premises  while  using  it  as 
a  house  for  public  resort  (<?). 

§  259.  A  statute  which  enacts  that  a  person  who  has 
been  convicted  by  justices  of  an  assault,  and  has  suffered  the 
punishment  awarded  for  it,  shall  be  released  from  all  other 
proceedings  "for  the  same  cause,"  would  not  be  construed 
as  exempting  him  from  prosecution  for  manslanghtei',  if  the 
party  assaulted  afterwards  died  from  the  effects  of  the  assault ; 
such  a  construction  would  defeat  the  ends  of  justice  (d). 
An  Act  which  imposed  a  penalty  on  any  sheriff  or  bailiff  who 
carried  a  person  arrested  for  debt  to  prison  for  twenty-four 
hours,  though  it  might  render  the  former  liable  for  the  act 
of  the  latter,  his  servant,  as  well  as  for  his  own,  would  not 
be  construed  to  admit  of  his  being  sued,  after  the  penalty 
had  been  recovered  from  the  bailiff;  for  this  would  be  to 
give  the  plaintiff  a  second  penalty  for  the  same  act,  after  he 
had  been  compensated  by  the  first;  and  would,  indeed,  make 
the  bailiff  liable  to  pay  twice,  as  he  would  be  bound  by  the 
usual  bond  to  indemnify  the  sheriff  (e) 

An  Act  (5  &  6  Yict.  c,  39,  s.  6)  which  protected  a  fraudu- 
lent agent  from  conviction,  if  he  "  disclosed  "  his  offence  on 

(a)  Flower  v.  Lord  Leyton,  5  Ancketill  v.  Baylis,  53  L.  J.  Q.  B. 
Ch.  D.  347.  104. 

(b)  Dargan  v.  Davies,  2  Q.  B.  (d)  R.  v.  JMorris.  L.  R.  1  C.  C. 
D.  118.  90.     ["  Same  olTenco  "  means  same 

(c)  33  &  34  Vict.  c.  29  ;  Lester  v.  both  in  law  and  in  fact  :  U.  S.  v. 
Torrens,   2  Q.    B.    D.    403.      See      Casbicl,  1  IIu?h.  553.] 

AVaiden  v.  Tye.  2  C.  P.  D.  74.  (c)  Peshall  v.  Layton,  3  T.  R. 
Comp.  Patten  v.  Rhymer,  sup.,  §  713.  See  Wright  v.  London  Omni- 
253.      See  another    illustration    in     bus   Co.,  3   Q.    B.    D.    371.     [See 

ante,  §  255.] 


340 


rNRKASON,    ETC. 


[§  -^<!^ 


oatli,  in  any  examination  in  l)ankru])t(*y,  was  licld  not  to 
include  a  confession  made  there  after  eoturaitment  by  a 
magistrate,  wliicli  was  in  substance  only  a  repetition  of  the 
facts  proved  before  the  latter;  on  the  ground  that  it  would 
have  been  absurd  and  mischievous  to  enable  a  man  to  provide 
an  indemnity  for  himself,  by  simply  making  a  statement  of 
facts  already  known  and  provable  aliunde,  and  not  in  any 
way  advancing  either  civil  or  criminal  justice  by  the  alleged 
"  disclosure  "  (a). 

§  260.  Although  there  is  no  positive  rule  of  law  against  a 
retrospective  rate  {h),  enactments  which  authorize  the  im- 
position of  rates  and  similar  burdens  on  the  inhabitants  of  a, 
locality  have  been  repeatedly  held  not  to  authorize,  without 
express  words,  a  retrospective  charge ;  on  the  ground  of  the 
injustice  of  throwing  on  one  set  of  persons  a  burden  which 
ought  to  have  been  borne  by  another  at  a  former  period  {e). 
And  where  the  Act  makes  the  occupier  rateable  at  what  a 
tenant  from  year  to  year  would  give  for  it,  it  would  be  under- 
stood, where  the  property  was  subject  by  law  to  restrictions 
which  prevented  the  occupier  from  obtaining  the  full  value,, 
that  the  hypothetical  tenant  was  similarly  subject  to  them  (d). 

An  Act  which  prohibits  the  negligent  use  of  furnaces  in 
such  a  manner  as  not  to  make  them  consume  smoke,  "  as  far 
as  possible,"  means  only  so  far  as  the  smoke  can  be  consumed 


(a)  R.  V.  Skeen,  Bell,  97,  28  L.  J. 
M.  C.  91.  So  held  by  nine  judges 
against  five.  See  Lewes  v.  Bar- 
nett,  G  Ch.  D.  252,  47  L.  J.  144. 

(b)  See  Harrison  v.  Stickuev,  2 
n.  L.  108  ;  R.  V.  Carpenter,  (J  A, 
&  E.  794  ;  R.  v.  Read,  13  Q.  B. 
524 ;  Jones  v.  Jolinson,  7  Ex.  452, 
21  L.  J.  M.  C.  102  ;  R.  V.  Maiden- 
head, 8  Q.  B.  D.  339,  51  L.  J.  209. 
[See  New  Engl.,  etc.,  Co.  v. 
Montgomery  Co.,  81  Ala.  110, 
where  it  is  said  that  the  Legislature 
may  impose  taxes,  having  a  retro- 
active operation,  and  may  take  the 
proOts  or  income  of  a  business  for 
a  preceding  year  as  the  measure 
of  assessment  :  but  tliat  such  an 
intention  is  not  to  be  presumed  in 
the  absence  of  clear  and  indisputa- 
ble expressions.] 

(c)  Tawny's   Case,  2   Salk.  531  ; 


Newton  v.  Young,  1  B.  &  P.  N. 
R.  187  ;  R.  V.  Maulden,  8  B.  &  C. 
78  ;  R.  V.  Dursley,  5  A.  &  E.  10  ; 
Waddington  v.  London  Union,  28 
L.  J.  M.  C.  103  ;  R.  v.  Strettield, 
32  L.  J.  M.  C.  236  ;  Bradford 
Union  V.  Wilts,  L.  R.  3  Q.  B.  D.  004; 
R.  V.  Wigan,  1  App.  Gil.  [Simi- 
larly, although  there  is  nothing  to 
prevent  the  Legislature,  if  it  so 
chooses,  to  impose  double  taxation, 
it  is  said,  in  the  Druggists'  Case," 
85  Tenn.  449,  to  be  safe,  in  the 
construction  of  revenue  laws,  to 
presume  against  an  inlent  to 
impose  double  taxation  on  the  same 
business  or  privilege.  In  llann., 
etc-. ,  R.  R.  Co.  v.  Shacklett,  30  Mo. 
550,  the  idea  of  double  taxation  is 
treated  as  an  absurdity.] 

(<Z)   Worcester    v.    Droitwich,   2- 
Ex.  D.  49. 


I  261]  UNKEASON,    ETC.  34:7 

consistently  witli  the  due  carrying  on  of  tlic  business  for 
which  the  furnace  is  used,  and  not  as  far  as  it  is  physically 
possible  to  consume  it,  without  regard  to  the  detriment  which 
the  business  carried  on  would  suffer  ;  the  Act  not  having 
expressed  any  intention  to  interfere  with  it  (a).  The  Carriers 
Act  (11  Geo.  4  &  1  Will.  4,  c.  GS),  which  exempts  carriers 
from  responsibility  for  the  loss  of  certain  articles  worth  more 
than  ten  pounds,  unless  their  nature  and  value  are  declared, 
but  enacts  also  that  the  Act  shall  not  affec^t  any  special 
contract  of  carriage,  was  construed  not  literally,  as  making 
the  Act  inapplicable  whenever  any  special  contract  was  made, 
but  only  as  not  affecting  any  special  contract  inconsistent 
with  the  exemption  provided  by  the  Act  {h). 

§  261.  [So,  where  the  terms  of  an  act  imposing  joint  and 
several  liability  for  the  debts  of  a  corporation  upon  its 
trustees,  as  the  consequence  of  their  neglect  to  make  and 
publish  certain  annual  returns  required  of  them,  were  broad 
enough  to  include  debts  of  the  company  to  an  individual 
trustee,  the  injustice  resulting  from  such  a  construction,  with 
the  effect,  manifestly  improper,  of  allowing  one  trustee  to 
avail  himself  of  the  default  of  the  board,  of  which  he  was 
an  integral  part,  to  establish  a  right  of  action  in  his  favor 
against  his  fellows,  induced  its  rejection."  Under  an  act 
giving  to  city  councils  the  power  to  make  and  establish 
rules  and  regulations  for  the  better  regulation  of  pit  or  bay 
windows,  whilst  it  authorizes  them  to  ordain  general  rules, 
upon  the  subject,  does  not  permit  any  special  legislation 
thereon,  or  the  granting  of  any  special  licenses  to  individuals 
to  erect  and  maintain  bay  or  oriel  windows  in  the  public 
highway  beyond  the  established  building  line."  Under  an 
act  which  grades  the  salaries  of  certain  county  officers  accord- 
ing to  the  population  of  a  county,  an  officer,  in  order  to  be 
entitled  to  a  certain  salary  claimed  by  him,  must  show  that 

(a)  Cooper  V.  Wolley,  L.  R.  2  Ex.  as    not    extending    to    any    such 
88.  injury  caused  by  tlie  shipowner  or 

(b)  Baxendale  v.  The  G.  E.  E.  bis  servants  :  Piiillips  v.  Clark,  3 
Co..  L.  R.  4  Q.  B.  24o.  The  ordi-  C  B.  N.  S.  156  ;  Czech  v.  Gen. 
narv  stipulation  in  a  bill  of  lading,  Steam  Nav.  Co.,  L.  R.  3  C.  P.  14. 
excepting  liability  for  brealiage,  '='  Briggs  v.  Eastedy,  63  Barb. 
leakage  and  damage,  would  "be  (N.  Y.)  51,  post,  ^  267. 
similarly   limited  in  construction,  "  Reimer's  App.,  lOOPa.  St.  183^ 


r.4^  UNREASON,    ETC.  [§  2(31 

tlie   iiiHubui-  of  iiiliiibitants  in   the  county,  at  tlio  time  he 
entered  upon  his  office,  was  such  as  to  chiss  it  as  a  county  in 
which  the  salary  asked  by  him  is,  by  tlie  act,  payable  there- 
for."    Obviously,  "  whatever  the  popuhition  may  previously 
have  been,  or  what  it  may  thereafter  become,  does  not  con- 
trol the  case.'"*     Hence,  where,  by  the  United  States  decen- 
nial census  of  18Y0,"*a  county  contained  160,915  inhabitants, 
and  in  1878  a  part  of   its  territory  was  separated  from  it  to 
erect  a  new  territory,  leaving,  according  to  the  census,  in  the 
remaining  portion  less  than  150,000  inhabitants,  and  it  was 
shown  that  the  new  territory,  in  that  year,  contained  80,000 
inhabitants,  an  officer  of  the  old  county,  entering  upon  his 
office  in   1880,  was  held  not  to  be   entitled  to  the  salary 
appointed  for  such  officers  in  counties   having  "  less  tlian 
250,000  and  over  150,000  inhabitants.'"'     The  object  of  an 
exemption  from  execution,  ordained  by  an  act,  of  tools,  etc., 
being  to  prevent    persons  in  financial  distress  from    being 
deprived  of  the  means  of  earning  a  livelihood,  it  was  held  to 
contemplate,  as  a  probable  contingency,  tliat  the  loss  of  all 
property  not  so  exempt  might  cause  at  least  a  temporary 
cessation  of  business  and  employment,  and  such  stoppage, 
therefore,  was  held  not  to  forfeit  the  exemption."     Under 
an  act  requiring  railroad   companies  to  erect  and  maintain 
fences  along  their  lines,  and  for  failure  to  do  so  making 
them  liable  for  all  damages  resulting  therefrom,  it  was  held 
that  a  railroad  company  was  not  liable  for  injuries  resulting 
from  a  casual  defect  in  the  fencing,  as  though  it  were  an 
insurer,     but   that   the    question    of   its   liability,  in    such 
cases,  was  a  question  of   neglect  bi   duty."     It  has    been 
seen"    how,    to   obviate   unreasonable    and    unjust   results, 
the  words  "owner,"  "occupier,"  and  the  like,  have  been 
given  a  construction  greatly  departing  from  their  usual  and 
ordinary  significations,  and'"  that  a  construction  of  a  statute 

"Monroe  v.    Luzerne   Co.,  103  not  be  assumed  :  Ibid. 

Pa.  Si.  278.  ''  Ibid. 

"•■»  lb.,  at  p.  281.  "  Harris  v.  Haines,  30 Mich.  140. 

'^  And   in   the  absence  of  evi-  "  Murray  v.  K.   11.   Co.,  3  Abb. 

dence,   an   increase  of  population  A  pp.  Dec.  "(N.  Y.)  339. 

between  its  date  and  that  of  the  "  Ante,  ^c?  95-0o. 

beginning  of  tlie  olticcr's  term,  will  •*"  Aute,  ^  130  note. 


§§  262,  263]  UNREASON,  ETC.  349 

"wliicli  would  make  a  man  guilty,  regardless  of  his  intent, 
should  not,  unless  unavoidable,  be  adopted/' 

§  262.  Summary  Proceedings.  — [It  has  been  said  that  the 
law  abhors  all  ex  parte  proceedings  without  notice,"  and 
that,  consequently,  to  take  a  man's  property  and  assess  his 
damages,  without  notice  to  him,  is  repugnant  to  every 
principle  of  justice.*^  Accordingly,  it  is  laid  down  as  a  rnle, 
that,  wherever  the  Legislature  autliorizes,  and  precribes  a 
mode  for,  the  taking  of  property,  it  is  to  be  presumed  that 
notice  is  to  be  given  to  the  parties  in  interest ;"  and,  as  a 
necessary  corollary  of  this  presumption,  that,  where  the 
statute  unequivocally  dispenses  witli  such  notice,  it  is  to  be 
strictly  construed  f^  as  is  also  a  statute  pennitting  construc- 
tive service  of  notice,  etc."] 

§  263.  Limits  of  ESect  of  Presumption  against  Injustice. — It  is 
to  be  borne  in  mind  tliat  the  injustice  and  hardship  which  the 
Legislature  is  presumed  not  to  intend  is  not  merely  such  as , 
may  occur  in  individual  and  exceptional  cases  only."  Laws 
are  made  ad  ea  quae  frequentius  accidunt  {a)  ;  and  individual 
hardship  not  unf requently  results  from  enactments  of  general 
advantage.  The  argument  of  hardship  has  been  said  to  be 
alwaj's  a  dangerous  one  to  listen  to  (J).     It  is  apt  to  intro- 

81  Bradley  v.  People.  8  Col.  599.  act  of  the  California  Legislature, 

See  another  instance  of  a  construe-  authorizing    ali-achmcnts    against 

tion  against  unreason  and  injustice,  boats  and  vessels  "  used  in  naviga- 

ante,  "§  142.  Philadelphia  v.  Pass,  linu-  the  -waters  of  the  state."  was 

Ry.  Co.,  103  Pa.  St.  190.    See.  also,  held  not  to  include  a  vessel  belong- 

Jilarsh  V.  Nelson,  101  Pa.   St.  51,  ing  to  ISew  York,    intended    for 

55,  where  it  was  said  :  "If  it  was  trade    between    New    York    atid 

the  design  to  do  away  with  the  dis-  China,  and  navigating  the  waters 

tinclion       between      seated       and  of  California  only  to  the  extent  of 

unseateil  lands,  it  is  likely  that  the  sailing    from    the    ocean    to    Sau 

right   of   redemption  would    have  Francisco :     Souter    v.    The     Sea 

been  placed  upon  the  same  footing."  Wilch,  1  Cal.  163  ;  and  see  Tucker 

«  Neeld's  Road,   1  Pa.  St.   353,  v.  The  Sacramento,  Id.  403  ;  Ray 

355.  V.  The  Henry  Harbeck,  Id.  451. 

83  Ibid.  86  Stewart  v.  Stringer,  41  Mo.  400; 

8*  Boonville  v.  Ormrod,  26  Mo.  Gray  v.  Larrimore,  3  Abb.  U.  S. 
193  ;  Wickham  v.  Page,  49  Id.  526.  543.  And  so  as  to  statutes  allow- 
That  a  statute  will  not  be  construed  ing  summary  proceedings  to  obtaia 
to  authorize  judicial  proceedings  possession  of  land  :  Baldwin  v. 
in  general,  without  notice  to  the  Cooley,  1  Rich.  N.  S.  (S.  C.)  356. 
party  to  bcallected  bv  them,  see  87  gee  ante,  §  251. 
Bish.,  Wr.  L.,§§  25, 141,  and  cases  (a)  Dig.  1.  9.  3—10.  [3  Inst, 
there  cited.  237.] 

85  See    ante,     §158,    and    post,  (6)  Pt-;- Cur.  in  Munro  v.  Butt,  8- 

§  334.      Upon   t'uis  principle,    an  E.  &  B.  754.     [Ante,  §  251.] 


350 


UNREASON,    ETC. 


[§2G4 


diice  b;id  law  (a) ;  and  has  occasionally  led  to  the  erroneous 
interpretation  of  statutes  (J).  Courts  ouglit  not  to  be 
influenced  or  governed  by  any  notions  of  hardship  {c). 
They  must  look  at  hardships  in  the  face  rather  than  break 
down  the  rules  of  law  (d)  ;  and  if,  in  all  cases  of  ordinary 
occurrence,  the  law,  in  its  natural  construction,  is  not  incon- 
sistent, or  unreasonable,  or  unjust,  that  construction  is  not 
to  be  departed  from  merely  because  it  may  operate  with 
hardship  or  injustice  in  some  paiticuhir  case  (e). 

§  264.  Presumption  against  Absurdity. — [The  presumption 
against  absurdity  in  the  provision  of  a  legislative  enactment 
is  probably  a  more  powerful  guide  to  its  construction,  than 
even  the  presumption  against  unreason,  inconvenience,  or 
injustice.  The  Legislature  may  be  supposed  to  intend  all  of 
these  ;  but  it  can  scarcely  be    supposed  to  intend  its  own 


(a)  Per  Rolfe,  B..  in  Winterbottom 
V.  Wright,  10  M.  &  W.  116  ; 
Brand  v.  Ilammersraitli  R.  Co., 
L.  R.  2  Q.  B.  241  ;  Adams  v. 
Graham.  03  L.  J.  Q.  B.  71. 

(b)  Comp.  ex.  gr.  Perry  v.  Skin- 
uer,  2  M.  &  W.  471,  with  R.  v. 
Mill,  10  C.  B.  ;379.  1  L.  M.  &  P. 
695  ;  and  R.  v.  Slides,  1  Q.  B.  919, 
and  Welch  v.  Nash,  8  East,  394, 
with  R.  V.  Phillips,  L.  R.  1  Q.  B. 
048.  See  He  Palmer.  21  Ch.  D. 
47. 

(c)  Pe?'  Lord  Abin2:er,  in  Rhodes 
V.  Smethurst,  4  M.  &  W.  03. 

(d)  Pev  Lord  Eldon,  in  the 
Berkeley  Peerage.  4  Camp.  419 , 
and  in  Jesson  v.  Wright,  2  Bligh, 
55;  per  Jessel,  M.  R. ,  in  Ford  v. 
Kettle,  9  Ch.  D.  439.  51  L.  J.  559, 
and  Kirk  v.  Todd,  21  Ch.  D.  488. 

(e)  See  Co.  Lilt.  97b.  152b  ;  per 
Parke,  B.,  in  Miller  v.  Salomons,  21 
L.  J.  192,  and  Williams  v. 
Roberts,  7  Ex.  628,  22  L.  J.  64. 
[The  maxim  ad  ea  quae  freqnen- 
tius,  etc.,  above  referred  to,  is  used 
also  to  express  a  very  different  idea 
appropriate  to  the  present  subject. 
"  Tlic  operation  of  statutes  is  gen- 
erally contined  to  things  which 
occur  most  frequenth',  and  is  not 
extended  to  everything  that  may 
possibly  happen.  Ad  ea  qua) 
frequeutius  accidunt  adaptanlur 
jura.  '  In  construing  a  statute  we 
must  not  look  to  cases  of  very  rare 


and  singular  occurrence,  but  to 
those  of  every  day's  experience  :  ' 
Hyde  V.  Johnson,  2  Bing.  N.  C, 
at  p.  780,  per  Tindal,  C.  J.  But 
this  rul(!  must  not  be  carried  so  far 
as  to  defeat  the  real  object  of  any 
statute,  either  by  the  omission  of 
cases  which  come  within  its  lan- 
guage, or  the  extension  of  such 
language  to  cases  which  it  cannot 
fairly  include.  The  rule  and  its 
limits  are  thus  stated  in  an  early 
case  :  '  When  the  words  of  a  law 
extend  not  to  an  inconvenience 
rarely  happening,  and  do  to  those 
which  olten  happen,  it  is  good 
reason  not  to  strain  the  words 
further  than  they  reach  by  saying- 
it  is  casus  omissus,  and  that  the 
law  intended  quae  frequentius 
accidunt.  Bnt  it  is  no  reason  when 
the  words  of  a  law  do  enough 
extend  to  an  inconvenience  seldom 
happening  that  they  should  not 
extend  to  it  as  well  as  if  it  hap- 
pened more  frequently  because  it 
happened  but  seldom  : '  Bole  v. 
llorlon,  Vaughan,  at  p.  373.  .  . 
'  We  cannot  agree  that  llie  small- 
ness  of  the  evil  to  be  remedied,  if 
the  words  arc  understood  in  their 
strict  and  proper  sense,  is  a  good 
reason  for  reading  them  in  another : ' 
Dimes  v.  Grand  Junction  Canal 
Co.,  9Q.  B.,  at  p.  514:"  Wilb., 
Stat.  L.,  pp.  169,  170. 


I  205]  UNREASON,    ETC. 


351 


stultification.  Accordingly,  it  has  been  said,  that,  when  to 
follow  the  words  of  an  enactment  would  lead  to  an  absurdity 
as  its  consequences,  that  constitutes  sufficient  authority  to 
the  interpreter  to  depart  from  them."  Ko  doubt,  where  a 
statute  declares  "  all  the  officers,"  etc.,  abolislied,  a  departure 
from  such  language  to  the  extent  of  reading  "  ofiicers  "  as 
"  offices "  held  by  the  officers  designated,  is  amply  war- 
rented.*'  And  where  the  close  interpretation  of  a  loosely 
amended  enactment  would  lead  to  consequences  so  dangerous 
and  absurd  that  they  could  never  have  been  intended,  the 
court  may  draw  its  construction  from  other  analogous  pro- 
visions, with  the  effect  of  supplying  an  omission  in  the 
act  under  construction."  In  general,  it  may  safely  be  said, 
that  where  words  in  a  statute  are  susceptible  of  two 
constructions,  of  which  one  will  lead  to  an  absurdity,  the 
other  not,  the  latter  is  to  be  adopted,''  though  it  be  not  the 
literal  construction,"  but  a  liberal  one."'  For  instance,  an 
act  punishing  the  "willfully  destroying"  a  fence,  would  be 
held  to  apply  only  to  such  acts  of  destruction  as  were  tres- 
passes.'* In  such  cases,  the  apparent  intent  of  the  statute 
must  prevail  over  a  literal  construction  of  its  terms." 

§  265.  Construction  ut  magis  valeat,  etc. — [There  is  the 
strongest  kind  of  presumption  against  the  existence  of  that 
species  of  absurdity  in  the  intention  of  the  Legislature  which 
would  consist  in  a  design  to  defeat  its  own  object.  Yet  it 
not  infrequently  occurs  that  one  portion  or  provision  of  a 
statute,  if  literally  or  even  naturally  construed,  would 
practically  nullify  the  whole,  or  some  material  portion,  of 
the  remainder  of  the  act,  with  the  effect  of  defeating  its 
obvious  purpose.  In  cases  of  this  description,  it  is  a  settled 
rule  of  construction,  flowing  from  the  obvious  absurdity  of 
any  other,  that  such  an  interpretation  shall,  if  possible,  be 
placed  upon  the  statute,  ut  magis  valeat  quam  pereat. 

88  peny  Co.  V.  JefEerson  Co.,  94     §§  81,  200.  and  case  there  cited. 
111.  314.  ^'-  See  Ibid.  ;  People  v.  Admire, 

89  Ohio  V.  Covington,  39  Ohio  39  111.  251  ;  State  v.  Clark,  29  N. 
St.  103.  117.  J.  L.  196  ;  Henry  v.  Tilson,  17  Vt. 

90  Foley   v.  Bourg,   10  La.    An.      479. 

139.  ^^  Gilkey  v.  Cook,  60  Wis.  133. 

91  Philadelphia  v.  Pass.  Ry.  Co.,  94  gt^te  v.  Clark,  supra. 

103  Pa.  St.  190,  197;  Jeflfersonville         95  Chandler  v.  Lee,  1   Idaho,  N. 
V.  Weems,  5  lud.  547 ;  Bish. ,  Wv.  L.,      S.  349. 


352  UNREASON,    ETC.  [§  265 

[It  has  been  seen  that  every  chiuse  and  word  of  a  statute 
is  presumed  to  have  been  intended  to  have  some  force  and 
effect."  A  fortioi'i,  tlie  kmguage  of  a  statute  is  to  be  given 
such  a  construction  as  will  give  the  act  some  force  and 
effect."  "It  is  a  cardinal  rule,  that  all  statutes  are  to  be  so 
construed  as  to  sustain,  rather  than  ignore,  them  ;  to  give 
them  operation,  if  the  language  will  permit,  instead  of 
treating  them  as  meaningless.*'  But  beyond  this,  "the 
duty  of  the  court,  being  satisfied  of  the  intention  of  the 
Legislature,  clearly  expressed  in  a  constitutional  enactment^ 
is  to  give  effect  to  that  intention,  and  not  to  defeat  it  by 
adhering  too  rigidly  to  the  mere  letter  of  the  statute,  or  to 
technical  rules  of  construction."  Hence,  in  the  construction 
of  statutes  an  interpretation  is  never  to  be  adopted  that 
■would  defeat  the  purpose  of  the  enactment,  if  any  other 
reasonable  construction  can  be  found  which  its  language 
will  fairly  bear"* — and  this  applies  as  well  to  penal  as  to 
other  statutes.*"  Thus,  an  appropriation  of  $200,000  for  the 
erection  of  buildings  authorized  which  must  cost  three  times 
that  amount,  would  not  be  construed  as  a  limitation  upon 
the  expenditure  ;  for  that  would  defeat  the  object  of  the 
law  :"'  and  a  declaration,  in  the  last  section  of  an  act,  that 
all  acts  and  parts  of  acts  relating  to  the  subject-matter 
thereof  should  be  repealed  from  and  after  the  time  when 
the  act  should  take  effect,  would  not  be  construed  as  a 
repeal  of  that  act,  but  of  all  others  upon  the  same  subject- 
matter."'  For  this  purpose,  wrong  figures  and  dates  have 
been  read  as  corrected"^ — words  have  been  treated  as 
surplusage"* — in  sentences  elliptically  construed,  word& 
evidently    necessary    to   complete    the    sense    have    been 

«^  Op.  of  Justices,  22  Pick.  571  ;  both  in  force,  rather  than  as  the 

ante,  ^  23.  last  repealing  the  first. 

"  Nichols  V.  Halliday,  27  Wis,  »»  Outes  v.  Nat'l  B'k,  100  U.   S. 

406  ;  Winter  v.  Jones,  10  Ga.   190  ;  239. 

Simmons    v.    Powder    Works,    7         '»»  The  Emily  and  The  Caroline, 

Col.  285  ;  Bish.,  Wr.  L.,  g  82,  cit.  9  Wheat.   381  ;  State  v.  Blair,  33 

Nichols  V.  Ilaliiday,  supra  ;  Bailey  Ind.  313. 
V.    Com'th,    11   Bush    (Ky.)    688  ;         ""  The  Emily,  etc.,  supra. 
Manis  v.    State,  3  Heisk.  (Tenu.)         i""  Cook  v.  Comm'rs,  6  McLean, 

315,  316.  112.      And  see  State  v.  Board  of 

»8  Howard  Assn's  A  pp.,  70  Pa.  Publ.  Works,  30  Ohio  St.  409. 
St.    344,    346.       In   this  case,    the         ">«  State  v.  Stinson,  37  Me.  154. 
principle  was  applied  so  as  to  con-  '°*  See  post,  §  319. 

strue  two   acts  in  pari  materia  as         '^  See  post,  §  301. 


§  266]  UNREASON,    ETC.  353 

supplied'** — and  in  a  statute  intended  to  confer  jurisdiction, 
the  word  "  not,"  inserted,  by  mistake,  in  such  a  way  as  to 
nullify  the  intention  of  the  Legislature,  was  ignored  in  the 
construction.'" 

§  266.  Caution  as  to  Application  of  Presumption  against 
Unreason,  etc. — [But  with  reference  to  absurdities  of  this 
class,  as  well  as  to  inconsistencies,  unreasonableness, 
inconvenience  and  injustice,  the  rule  that  controls  all  is, 
"  that  we  are  to  take  the  whole  statute  together  and  construe 
it  all  together,  giving  the  words  their  ordinary  significance, 
unless  when  so  applied  they  produce  an  inconsistency,  or  an 
absurdity,  or  inconvenience  so  great  as  to  convince  the 
court  that  the  intention  could  not  have  been  to  use  them  in 
their  ordinary  signification,  and  to  justify  the  court  in 
putting  on  them  some  other  signification  which,  though  less 
proper,  is  one  which  the  court  thinks  the  words  will  bear.'""* 
And  "  the  absurdity,  injustice,  inconsistency,  inconvenience 
and  incongruity,  which  are,  if  possible,  to  be  avoided,  must 
be  such  as  an  examination  of  the  statute  itself  and  a  compari- 
son of  all  its  parts  would  disclose ;"""  and  not  such  merely 
as  arise  from  local  circumstances  which  may  never  have 
been  known  to  the  Legislature."*  l^or  can  the  construction 
contravene  the  language  of  the  act,  taking  from  it  what  it 
clearly  expresses,  or  putting  that  into  it  which  is  not  there, 
explicitly  or  impliedly.  Even  a  failure  of  justice,"'  or  a 
defeat  of  the  object  of  the  enactment"'  will  not  authorize  the 
court,  "  where  the  Legislature  have  enacted  something  which 
leads  to  an  absurdity,  to  repeal  that  enactment  and  make 
another  for  them,  if  there  are  no  words  to  express  that 
intention,""'  to  which  the  court  may  be  convinced,  from, 
outside  considerations,  they  meant  to  give  effect.  And, 
where  the  provisions  of  an  act  are  such,  as,  if  made  operative, 

">«  Post,  §  318,  Nichols  v.  Hal-  "»  Smith  v.  Bell,  10  M.  &  W. 

liday,  27  Wis.  406  ;   and  see  Phila-  378.     Comp.   Ryegate    v.    Wards- 

delpliia  v.  Pass.  Ry.  Co.,  103  Pa.  boro,  30  Vt.  746,  ante,  §  249. 

St.  190,  197.  '"  See  Pitman  v.  Flint,  10  Pick. 

i<"  Chapman  v.   State,  16  Tex.  (Mass.)  506.  ante,  §  155. 

App.  76.  "2  See  ante,  §  6. 

'0*  Wear  Comm'rs  v.  Adamson,  "'  Woodward  v.  Watts,  2  H.  &. 

L.  R.  2  App.  Caa.  743,  764^5.  B.  452.  458. 

103  Wilb.,  114-115. 

23 


S5A 


UNKEASON,    ETC. 


[§  20G 


•would  violate  the  declared  meaning  and  intent — to  carry  out 
which,  all  other  parts  of  the  act  must  yield"* — the  courts 
have  no  discretion  but  to  construe  the  act  as  inoperative."* 


••*  Farmers'  B'k  v.  Hale,  59  N. 
Y.  53. 

"*  Ibid.  And  a  local  act  whose 
purpose  it  is  to  repeal  a  general  act 


as  to  a  certain  county,  is  wholly 
nugatory  wliere  the  latter  act  has 
been  already  repealed  by  a  general 
act:  Keed's  App.,  114  Pa.  St.  452. 


<'y 


§  267]  IMPAIKING   OF   00NTJBA0T8,   BTO.  355 


CHAPTER  X. 

Pkesumption  against  Constkuction  Pekmitting  Impaieing 
OF  Contracts,  Advantage  from  Own  Wrong,  and 

E-ETROSPECTrVB  OPERATION. 

§  267.  Presumption  against  Impairing  Contracts  or  Advantage  from 
Wrong. 

§  269.  "  Void  "— "  Voidable." 

§  271.  General  Presumption  against  Retrospective  Operation. 

§  272.  Prospective  Effect  apparently  Contrary  to  Words. 

§  273.  Acts  affecting  Vested  Rights. 

§  277.  Acts  imposing  New  Liabilities. 

i^  278.  Acts  conferring  Benelits. 

§  279.  Acts  creating  Disabilities  and  Limitations. 

§  280.  What  not  within  Rule  against  Retroaction.  Inchoate  Rights, 
etc. 

§  283.  Effect  of  Legislation  in  General  upon  Pending  Causes. 

§  283.  Where  Retrospective  Operation  is  to  be  Given.     Clear  Intent. 

§  284.  Where  no  Vested  Rights  affected. 

§  285.  Acts  Relating  to  Procedure. 

§  288.  Effect  of  Acts  relating  to  Procedure  Only  on  Pending  Pro- 
ceedings. 

§  290.  Limits  of  this  Rule. 

§  291.  Curative  and  Declaratory  Laws. 

§  294.  Amendments. 

§  267.  Presumption  against  Impairing  Contracts  or  Advantage 
from  Wrong. — On  the  general  principle  of  avoiding  injustice 
and  absurdity,  any  construction  would  be  rejected,  if  escape 
frotn  it  were  possible,  which  enabled  a  person  to  defeat  or 
impair  the  obligation  of  his  contract  by  his  own  act,  or  other- 
wise to  profit  by  his  own  wrong.  Thus,  an  Act  which 
authorized  justices  to  discharge  an  apprentice  under  certain 
circumstances,  from  his  indenture,  "on  the  master's  appear- 
ance "  before  them,  would  justify  a  discharge  in  his  wilful 
absence.  The  Act,  it  was  observed,  must  have  a  reasonable 
construction,  so  as  not  to  permit  the  master  to  take  advantage 


356  IMPAIKINO    OF    CONTRACTS,    ETC.  [§  26T 

of  his  own  obstinacy.  It  would  be  very  hard  tliat,  supposing: 
the  master  was  profligate  and  ra'i  away,  the  api)rentioe  should 
never  be  discharged  {a).  [So,  under  a  statute  requiring  the 
defendant  in  certain  actions  to  lile,  within  a  specified  time, 
an  affidavit  of  defence,  and  in  default  thereof  entitling 
the  plaintiff  to  judgment,  although  the  act  was  declared  to 
be  out  of  the  course  of  the  common  law,  and  inca})able  of 
being  extended  beyond  its  terms,'  and  although,  primarily, 
it  certainly  contemplated  the  appearance  of  the  defendant  in 
court" — it  was  nevertheless  held  that  the  failure  of  a  defend- 
ant, duly  served  with  process,  to  enter  an  appearance  could 
not  effect  the  plantiff's  right  to  a  judgment  for  want  of  an 
affidavit  of  defence,  where  none  was  filed  within  the  time 
limited  ;  there  being  no  reason  why  a  defendant  should  have 
it  in  his  power  to  evade  the  operation  of  the  statute  by  not 
appearing  in  the  action  in  obedience  to  the  summons,  and 
thus,  by  Ills  own  wrongful  act,  to  gain  an  advantage  over 
his  adversary."]  For  similar  reasons,  an  Act  (30  &  31  Yict. 
c.  84)  which  authorized  a  justice  to  summon  a  parent  "  to 
appear  with  liis  child  "  before  him,  for  breach  of  the  Yaccina- 
tion  Act,  and  "  upon  his  appearance,"  to  order  the  vaccina- 
tion of  the  child,  if  he  should  find  that  it  had  not  already 
nndei'gone  that  operation,  was  held  to  authorize  such  an 
order  without  the  appearance  of  the  child,  when  the  parent 
refused  to  produce  it.  A  literal  construction,  making  the 
production  of  tiie  child  a  condition  precedent  to  the  making 
of  the  order,  would  have  involved  the  supposition  that  the 
Legislature  had  intended  to  allow  the  parent  to  defeat  its 
object  by  disobeying  the  summons  which  it  had  ordered  (5). 
A  trustee  in  bankruptcy  who  lias  received  a  sum,  would  be 
liable  to  arrest  under  the  provision  of  the  Debtors'  Act  of 
1869,  which  makes  a  trustee  liable  to  imprisonment  for  dis- 
obeying an  order  to  pay  a  sum  "  in  his  possession  or  bis 
control,"  though    in  fact  he  had  spent    it  all  (c).      [It  has 

(a)  Ditton's  Case,  2  Salk.  490.  (b)  Dutton  v.  Atkins,  L.  R.  6Q. 

'  Yoates  v.  Meadville,  56  Pa.  St.  B.  673. 

21  ;  Wall  V.  Dovcy.  60  Id.  213.  (c)   33  &  33   Vict.   c.  71.    s.    4  ; 

2  See  ante,  §  249.  Middleton  v.   Chichester,  L.   R.  6 

2  Slocum   V.  Slocum,    8  Watts  Ch.  153.      See  Lewes  v.  Barnett,  6- 

(Pa.)  307  ;  Clark  v.  Dotter,  54  Pa.  Ch.  D.  252,  47  L.  J.  144. 
St.  215. 


§  268]  IMPAIRING    OF    CONTRACTS,    ETC.  357 

already  been  seen  that,  under  an  act  imposing  individual  lia- 
bility for  the  debts  of  a  corporation  upon  its  trustees,  where 
they  fail  to  make  certain  required  returns,  a  member  of  the 
board  of  trustees  which  had  been  guilt}'  of  such  dereliction 
cannot  invoke  the  provision  for  his  own  benefit  as  against 
his  fellows.''] 

§  268.  An  enactment  that  a  company  should  not  issue  any 
«hare,  that  no  share  should  vest  until  one-fifth  of  its  amount 
was  paid  up,  and  that  the  shareholder  who  had  not  paid  up 
one-fifth  should  have  no  right  of  property  in  the  shares 
allotted  to  him,  or  capacity  to  transfer  them,  was  considered 
•as  limited  to  protection  to  the  public.  To  construe  it  as 
applying  also  to  the  benefit  of  the  shareholder,  would  have 
been  to  absolve  him  from  liabilitj'  to  pay  up  calls  until  he 
had  paid  the  requisite  proportion  ;  or,  in  other  words,  to 
enable  him  to  profit  by  his  own  default  ;  a  consequence  too 
unjust  and  unreasonable  to  have  been  intended  («).  [So, 
where  a  statute  authorized  the  formation  of  railroad  com- 
.panies  by  persons  subscribing  articles  of  association,  which 
were  to  be  filed  with  the  Secretary  of  the  Commonwealth 
and  become  the  charter  of  the  company,  but  not  until  $9,000 
per  mile  had  been  subscribed,  and  ten  per  centum  paid  in 
good  faith,  and  provided  that  no  subscription  should  be 
taken  without  payment  of  ten  per  centum  of  the  amount 
subscribed,  it  was  held  that  one  who  subscribed  the  articles 
for  such  a  corporation,  but  did  not  pay  the  ten  per  centum 
required,  could  not,  in  a  suit  upon  his  subscription,  after  the 
articles  had  been  filed  and  the  certificate  of  incorporation 
issued,  be  permitted  to  set  up  his  default  in  avoidance  of 
his  obligation  to  pay  the  amount  subscribed.'  A  statutory 
requirement  that  the  supervisors  of  townships  shall  afford 

4  Ante,  §  261.  Brings  v.  Easterly,  bury,  3  DeG.,  F,  &  J.  80. 

62  Barb.  51,  is  largely  based  on  the  «  Garrett  v.  R.  R.  Co.,  78  Pa.  St. 

principle  tliat  no  person  can,  by  465.     And  see  the  same  principle 

his   own   transgressions,  create    a  asserted  in  Morrison  v.  Dorsey,  48 

cause  of  action   in  his  own  favor  Md.  461  ;  Hager  v.  Cleveland,  36 

against  another.  Id.  476  ;  CaboF,  etc.,  Co.  v.  Chapin, 

{a)  East  Gloucestershire  R.   Co.  6  Cush.  (Mass.)  50,  373.     Compare 

v.   Bartholomew,  L.  R.  3  Ex.  15.  ante,  §   137,  O'Hare  v.    Bank,  77 

Comp.,    however,  R.    v.   Stafford-  Pa.   St.  96,  and  Penn  v.  Bornmau, 

shire,  7  East,   549,  and  E.xp.  Par-  103  111.  523. 


358  IMI'ATRING    OF    CONTRACTS,    ETC.  [§  269 

the  tax-payers  of  the  same  an  opportunity  of  paying  their 
road-taxes  in  Lal)or  gives  no  defence  to  a  township  in  a  suit 
by  a  contractor  for  work  done  on  a  bridge  for  the  township, 
where  the  opportunity  was  not  so  afforded.*  Nor  does  a 
statute  making  eight  hours  a  day's  labor,  and  directing  that 
"  a  stipuhition  to  that  effect  shall  be  made  a  part  of  all  con- 
tracts to  which  the  state  or  any  municipal  corporation  there- 
in shall  be  a  party,"  avoid  a  contract  in  which  that  stipulation 
has  been  omitted,  nor  forfeit  the  rights  of  the  parties  under 
it/  An  illustration  of  the  principle  under  discussion  is 
afforded  by  a  recent  English  case.  A  agreed  with  B  to  build 
certain  houses  within  a  specified  time,  B  agreeing,  on  their 
completion,  to  grant  A  leases  of  the  same,  A  to  pay  B  a 
specified  rent  from  the  date  of  the  agreement  to  the  expira- 
tion of  the  leases.  A  failed  to  build  the  houses  in  the  time 
fixed  by  the  agreement,  and  before  they  were  built,  a  statute 
rendered  their  erection  illegal.  In  spite  of  the  rule,  that, 
where  the  performance  of  a  contract  is  rendered  illegal  by 
law,  the  obligation  is  discharged,*  it  was  held  that  A  was  not 
by  the  statute  relieved  from  his  obligation  to  pay  the  rent 
under  the  agreement.*] 

§  269.  "Void"— "Voidable." — Although  the  9  Anne,  c.  14, 
enacted  that  bills  and  notes,  founded  on  the  consideration  of 
money  lost  at  play,  should  be  "  utterly  fi'ustrate,  void,  and 
of  none  effect,  to  all  intents  and  purposes,"  its  operation  was 
confined  to  preventing  the  drawer  (or  any  person  claiming 
under  him  (a)  )  from  recovering  from  the  loser  ;  but  it  left 
the  instrument  unaffected  in  the  hands  of  an  innocent  indorsee 
for  value  suing  the  drawer  (h).  The  statute  was  construed 
as  if  the  words  were  voidable  as  against  certain  persons  only, 
but  were  valid  as  regards  others. 

«  Oakland  Tp.  v.  Martin,  104  Pa.  v.  Ilutchings,  10  Cal.  523  ;  Dade 

St.  303.  V.   Madison,    5   Leigh   (V'a.)  401; 

'  "Babcock   v.  Goodrich,  47  Cal.  but  contra  :  Fenno  v.  Sayre,  3  Ala. 

488.  458  ;  Ivey  v.   Nicks,  14  Id.   564; 

*  See  post,  §  401.  (unless    induced   by   the   loser    to 

'  Gibbons  v.  Ohambers,  1  C.  &  take  it :  see  .Tones  v.  Sevier,  1  Litl. 

E.  577.  (Ky.)  133  :)  Chapin  v.  Dake,  57  111. 

(a)  Bowyer  v.   Bampton,  2  Stra.  295  ;    Uni^^er   v.    Boas,  13   Pa.    St. 

1155.  (>01;  Harper  v.  Young,  112  Id.  410. 

(fj)  Edwards  v.  Dick,  4  B.  &  A.  And  see,  upon  the  subject,  2  Ran- 

212.     [See  to  similar  effect :  Fuller  dolph,  Comm.  Paper,  §  517.] 


§  269]  IMPAIRING    OF   CONTRACTS,    ETC.  oi)[) 

So,  wliere  an  Act  provided  that  if  the  purchaser  at  an 
auction  refused  to  pay  the  auction  duty,  when  this  was  made 
a  condition  of  sale,  his  bidding  should  be  "  null  and  void  to  all 
intents  and  purposes,"  it  was  held  tliat  the  object  of  the 
enactment  was  completely  attained  by  making  the  bidding 
void  only  at  the  option  of  the  seller;  thus  avoiding  the 
injustice  and  impolicy  of  enabling  a  man  to  escape  fj'om  the 
obligation  of  his  contract  by  his  own  wrongful  act,  which  a 
literal  construction  would  have  involved  («). 

An  Act  which  required  that  indentures  for  binding  parish 
apprentices  should  be  for  the  term  of  seven  years  at  least, 
declaring  that  otherwise  they  should  be  "  void  to  all  intents 
and  purposes,  and  not  available  in  any  court  or  place  for  any 
purpose  whatever,"  was  held,  nevertheless,  to  make  an 
indenture  for  a  shorter  term  only  voidable  at  the  option  of 
the  master  or  apprentice ;  or  at  all  events  to  leave  it  so  far 
valid  that  service  under  it  sufficed  to  gain  a  settlement  (h). 

The  Act  of  3  Hen.  7,  c.  4,  which  declared  that  gifts  of 
eoods  and  chattels  in  trust  for  the  donor  and  in  fraud  of  his 
creditors  should  be  "void  and  of  none  effect,"  was  early 
held  to  be  so  only  as  to  those  who  were  prejudiced  by  the 
gift,  but  not  as  between  the  parties  (c).  Though  the  Sunday 
Act  has  the  effect  of  avoiding  contracts  made  on  Sunday  by 
and  with  tradesmen  and  other  classes  of  persons,  in  the  course 
of  their  ordinary  calling,  the  invalidity  affects  only  those 
persons  who,  when  contracting  with  them,  knew  their 
calling  ;  but  those  who  dealt  with  them  in  ignorance  of  it 
would  be  entitled  to  sue  on  the  contract  {d).  [And,  though 
made  on  Sunday,  if  not  within  the  "ordinary  callings"  of 
the  parties,  it  is  not  void  at  all  ;'"  and  negotiable  paper,  drawn 

(a)  Mai  ins  v.   Freeman,  4  Bing.  Hardw.  323;  Graj-v.  Cookson.  16 

N.  C.  395.     So,  the  usual  stipula-  East,  13  ;   R.  v.   St.  Gregory,  2  A. 

tion  in  a  lease  that  if  any  covenant  &  E.  107  ;  Oakes  v.  Turquand,  L. 

is  broken  by  the  lessee,  the  lease  R.  2  H.  L.  325  ;  Burgess's  Case,  15 

shall  be  void,  is  construed  as  void-  Ch.  D.  507. 

able  only  at  the  option  of  the  lessor.  (c)  Ridler  v.  Punter.  Cro.  Eliz. 

The     literal     construction    would  291  ;  Bessey  v.  Windham,  6  Q.  B. 

enable  a  lessee  to  get  rid  of  an  16G.    See  Philpotts  v.  Philpotts,  10 

onerous  lease  by  wilfully  breaking  C.  B.  85. 

a  covenant  in   it.      See  per  Lord  (d)  Bloxome  v.  Williams,  3  B.  «& 

Cairns  in    Masdalen    Hospital   v.  C.  232. 

Knotts.  4  App!"  332.  "  Sanders  v.    Johnson,    29   Ga. 

(6)  5  Eliz.  c.  4  ;  R.  v.  St.   Nicho-  526  ;  and  the  burden  of  showing 

las,    2    Stra.     1066,      Ca.     Temp,  that  the  act  was  within  the  "  ordi- 


3G0  IMl'AIUING  OF  CONTKAOTS,    KTO.  [§  270 

and  accepted  on  Sunday,  but.  dated  as  of  anothei  day,  lias 
been  held  valid  in  the  hands  of  an  innocent  holder  for  value 
and  without  notice."] 

§  270.  In  all  these  cases  the  intention  of  the  Legislature 
■was  considered  as  completely  carried  out  by  the  restricted 
scope  given  to  its  enactments.  But  where,  having  regard  to 
the  general  policy  of  the  act  as  well  as  to  the  language  and 
the  structure  of  the  sentence,  it  would  not  have  that  effect, 
the  words  abridging  or  avoiding  the  effect  of  instruments, 
contracts,  and  dealings  would  receive  their  primary  and  nat- 
ural meaning.  [So,  under  a  statute  whose  object  was  the 
prevention  of  unjust  attachments,  by  the  instrumentality  of 
sheriffs  or  their  deputies,  "who  have  great  opportunities  and 
means  of  defrauding  creditors  by  secret  attachments,"  and 
which,  therefore,  prohibited  such  from  making  or  filling  up 
any  plaint,  declaration,  writ  or  process,  and  declared  "all 
such  acts  done  by  either  of  them  "  void,  it  was  held,  that, 
where  a  writ  and  declaration  were  written  by  a  deputy 
sheriff,  an  attachment  made  uj)on  the  writ,  and  the  land 
seasonably  set  off  on  an  execution  issued  on  a  judgment 
recovered^  in  the  suit,  all  these  proceedings  were  void  as 
against  the  debtor's  conveyance  of  the  land  to  a  bonafide 
purchaser  for  a  good  consideration,  before  judgment.''] 

Where,  indeed,  a  statute  not  only  declares  a  contract 
void,  but  imposes  a  penalty  for  nuxking  it,  it  is  not  voidable 
merely  {a).  The  penalty  makes  it  illegal.  In  general,  how- 
over,  it  would  seem  that  where  the  enactment  has  relation 
only  to  the  benefit  of  particular  persons,  the  word  "void" 
would  be  understood  as  "  voidable"  only,  at  the  election  of 
the  persons  for  whose  protection  the  enactment  was  made, 
and  who  arc  capable  of  protecting  themselves  ;  but  that  when 

nary  callings  "  of  the  parties  is  on  property  on  Sunday,"  cit.  S.  C,  18 

bim  who  sets  up  the  defence  to  the  Id.  2f^0. 

statute.     In  Alabama  It  is  held  that  "Ball   v.    Powers,    02  Ga.    757. 

a  contract  made  on  Sunday  is  not  '^    Smith    v.     Saxton,    6    Pick. 

void  where  the  exigency   of    the  (Mass.)    4S3.        And  see    Peun  v. 

case  required  it,  in  order  to  prevent  Bornman,  102  111.  523,  ante,  ^  137, 

a    threatened     loss:     Hooper     v.  note.     Compare,  however,  Jackson 

Edwards.     25    Ala.     528.      "We  v.  Collins,  3  Cow.  (N.  Y.)  85,  ante, 

must  not  80  construe  as  to   make  §  98. 

the  act  the  means  of  escaping  from  (a)  Gye  v.  Feltoii,  4  Taunt.  8/0. 

payment   of   debt   by   removal   of  [And  see  post,  §  449  et  seqq.] 


§   210]  IMPAIRING  OF  COJMTKxVOTS,    ETC,  3G1 

it  relates  to  persons  not  capable  of  protecting  themselves,  or 
when  it  has  some  object  of  public  policy  in  view  which 
requires  the  strict  construction,  the  word  receives  it  natural 
full  force  and  effect  (a).  [Thus,  it  would  be  construed  as 
meaning  "voidable"  in  an  act  which  provides,  that,  "if  an 
owner  of  lands  sold  for  taxes  establishes  fraud  in  the  sale, 
the  sale  shall  be  void,"  '^  In  a  case  above  referred  to,"  it 
was  said  :  "It  has  been  argued,  that  by  judicial  construction 
.  .  the  extent  and  force  of  the  term  void  have  been  lim- 
ited, so  that  in  truth  it  means  voidable,  or  to  be  made  void 
hy  some  plea  or  act  of  the  party  in  favor  of  whose  interests 
such  statutes  arc  set  up.  And  there  is  no  doubt  that  such 
decisions  ,  .  are  founded  in  good  sense  and  reason,  and 
conform  to  the  intention  of  the  Legislature  in  their  use  of 
the  term.  An  infant's  acts,  by  the  common  law,  are  said  to 
he  void,  and  yet  they  may  be  confirmed  on  his  coming  of 
age.  Usurious  debts  and  gaming  contracts  are  declared  to 
be  void,  and  yet  a  plea  is  necessary  to  avoid  them,  and  a 
judgment  precludes  a  partner  from  showing  that  they  were 
void."  "  Pi-operly  speaking,  the  term  void  means  of  no 
legal  force,  null  and  incapable  of  ■  confirmation  or  ratifica- 
tion.'* That  is  absolutely  void  which  the  law  or  the  nature 
of  things  forbids  to  be  enforced  at  all."  What  is  void  can 
always  be  assailed,  in  any  j^roceeding;  what  is  voidable  can 
be  assailed  only  in  a  dii-ect  proceeding  instituted  for  that 
purpose."  The  distinction,  therefore,  is  of  the  greatest 
importance  in  its  consequences  as  to  third  persons;  for 
nothing  can  be  founded  upon  what  is  absolutely  void,  where- 
as from  those  things  which  are  voidable  only  fair  titles  may 
flow."  Nevertheless,  it  is  a  distinction  which  is  often  ignored 
in  statutes,  the  word  "  void  "  being  used  where  "  voidable  "  is 

{n)  See  per  Bayley,  J.,  in  R.  v.  •''  Seylar  v.  Carson,  69  Pa.  St.  81. 

Hips^vell,  8  B.  »fe  C.  471.    See,  also,  Relatively  void  is  that  which  is  a 

Beiham  v.    Gregg,  10  Bing.  352,  wroni;-  to  individuals,  and  which 

and  Storie  v.  Winchester,  17  0.  B.  the  law  refuses  to  inforce  against 

953.  them  :  Ibid. 

13  Van  Shaack  v.    Robbins,  36  '^  Alexander  v.  Nelson,  42  Ala. 

Iowa,  201.  462  ;  and  see  Swayue  v.    Lyon,  67 

"   Smith     v.    Saxton,    6    Pick.  Pa.  St.  436,  441. 

(Mass.)  483.  i9  Crocker  v.  Bellancee,  6  Wis. 

15  Ibid.,  at  pp.  486-7.  645  ;  Bromley  v.  Goodrich,  40  Id. 

1*^     Van     Shaack     v.     Robbins,  131. 
supra. 


302 


KETKOACTIUN. 


[§  271 


really  intended."  Ilcnce  it  is  said  that  the  term  "void,"  as 
used  in  statutes,  does  not  ordinarily  import  absolute  nullity," 
but  does  60  onl}'  in  a  clear  case."] 

§  271.  General  Presumption  Against  Retroactive  Operation. — 
Upon  the  presumption  that  the  Legislature  does  not  intend 
what  is  unjust  rests  the  leaning  against  giving  certain  stat- 
utes a  retrospective  operation  (a).  Nova  constitutio  futuris 
formam  imponere  debet,  non  prseteritis.  They  are  con- 
strued as  operating  oidy  on  cases  or  facts  which  come  into 
existence  after  the  statutes  were  passed  {b),  unless  a  retro- 
spective effect  be  clearly  intended.  [Indeed,  the  rule  to  be 
derived  from  the  comparison  of  a  vast  number  of  judicial 
utterances  upon  this  subject,  seems  to  be,  that,  even  in  the 
absence  of  constitutional  obstacles  to  retroaction,  a  construc- 
tion giving  to  a  statute  a  prospective  operation  is  always  to 
be  preferred,  unless  a  purpose  to  give  it  a  retrospective  force 
is  expressed  by  clear  and  positive  command,  or  to  be  inferred 
by  necessary,  unequivocal  and  unavoidable  implication  from 
the  words  of  the  statute  taken  by  themselves  and  in  connec- 
tion with  the  subject-matter,"  and  the  occasion  of  the  enact- 
ment," admitting  of  no  reasonable  doubt,  but  precluding  all 
question  as  to  such  intention."     A  few  instances  only  of  the 


«o  Van  Sbaack  v.  Robbins,  36 
Iowa,  301 ;  Crocker  v.  Bellangee, 
supra;  Bennett  v.  Mattingly,  110 
Iml.  197,  203;  e.  g.,  in  a.  provision 
declaring  void  a  married  woman's 
coul  racls  of  suretyship  for  her  hus- 
band :  Ibid. 

'^  Kearney  v.  Vaughan,  50  ^lo. 
284. 

"  Brown  v.  Brown,  50  N.  H. 
538,  553.  Comp.  ante,  t^  137.  A 
California  statute  that  no  contract 
shall  be  binding  on  a  company 
unless  made  in  writing,  is  held  to 
apply  only  to  contracts  wbollj' 
executory  :  Foulke  v.  11.  R.  Co.,  51 
Cal.  305. 

(a)  2  Inst.  293  :  [Bedford  v. 
Shilling,  4  Serg.  &  R.  (Pa.)  401, 
403,  per  Tilgliman,  C.  J.  And  see 
Taylor  v.  Mitchell,  57  Pa.  yt.  209, 
213,  per  Sliarswood,  J.  ;  Albee  v. 
May,  3  Paine,  74 ;  lie  Billings,  3 
Ben.  313.] 

(6)  Per  Erie,  C.  J.,  in  Midland 
R.  Co.  V.  Pye,  10  C.  B.  N.  S.  191  ; 


per  Cockburn,  C.  J.,  2  Q.  B.  D.  269; 
per  Pollock,  C.  B.,  in  Young  v. 
Hughes,  4  H.  &  N.  76  ;  Vansit- 
tart  V.  Taylor,  4  E.  «&  B.  910. 

23  See  Bay  v.  Gage,  36  Barb. 
(N.  Y.)  447. 

^*  People  V.  Supervisors  of 
Essex,  70  N.  Y.  228. 

"  See  U.  S.  V.  Heth,  3  Cranch, 
399  ;  Murray  v.  Gibson,  15  How. 
431  ;  Harvey  v.  Tyler.  3  Wall.  339; 
Chew  Heoiig  v.  U.  S.,  113  U.  S. 
536  ;  U.  S.  V.  Starr,  llempst.  469  ; 
Costin  V.  Wasiiington.  3  Cranch 
C.  Ct.  354;  Prince  v.  U.  S.,  3  Gall. 
204  ;  Warren  Mauufg  Co.  v.  Ins. 
Co.,  2  Paine,  501;  Ellis  v.  Ins.. 
Co.,  19  Blatchf.  383;  lie  Billings. 
3  Ben.  313  ;  Tinker  v.  Van  Dyke, 
14  Bankr.  Reg.  113 ;  People  v. 
Columbia  Co.,  43  N.  Y.  130; 
MciMaster  v.  State,  103  Id.  547  ; 
Quackenbush  v.  Danks,  1  Denio 
(N.  Y.)  138  ;  Dash  v.  Van  Klecck, 
7  .Tohns  (N.  Y.)  477  ;  Shepherd  v. 
People,  34  How.  Pr.  (N.  Y.)  388  ; 


§271] 


KETli(MCTION. 


363 


operation  of  this  I'nle  can  be  liere  given."  An  act  declaring 
forfeiture  of  dower  or  curtesy,  "  wlienevei-  a  married  man 
sliall  be  deserted  by  his  wife,  or  a  married  woman  by  her 
husband,"  for  the  space  of  one  year,  was  held  to  apply  only 
to  cases  of  desertion  beginning  after  the  statute  went  into  oper- 
ation.*^ A  provision  that  married  women  shall  be  bound,  like 
other  persons,  by  estoppel  in  pais,  was  held  inapplicable  to 
the  case  of  a  mortgage  made  by  such  a  person  before  the  enact- 
ment." An  act  amending  a  city  charter  and  fixing  the  sala- 
ries of  certain  oflficials  in  the  city  was  deemed  prospective 
only,"  and  so  was  an  act  making  it  the  duty  of  the  auditor 
of  a  state  to  pay  into  the  state  treasury  75  per  cent,  of  all 
fees  collected  by  him,  under  the  provisions  of  a  certain  earlier 


Wade  V.  Strack,  1  Hun  (N.  Y.)  90 ; 
3  Thonap.  &  C  165  ;  Whitney  v. 
Hapgood,  10  Mass.  437  ;  Somerset 
V.  Dighton,  12  Id.  383  ;  Medford 
V.  Learned,  16  Id.  315  ;  Gerry  v. 
Stoneham,  1  Allen  (Mass.)  319  ; 
Garrett  v.  Wiggins,  2  III.  335 ; 
Mason  v.  Finch,  3  Id.  223  ;  Guard 
V.  Rowan,  Id.  499  ;  Bruce  v. 
Schuyler,  9  Id.  221  ;  Belleville  R. 
R.  Co.  v.  Gregory,  15  Id.  20 ;  La 
Salle  V.  Bianchard,  1  111.  App. 
635  ;  Bartruff  v.  Remey,  15  Iowa, 
257;  Mcintosh  v.  Kilbourne,  37  Id. 
420 ;  Barnes  v.  Mobile,  19  Ala. 
707;  Hooker  v.  Hooker,  18  Id.  599; 
Brown  v.  Wilcox,  22  Miss.  127  ; 
Garrett  v.  Beaumont,  24  Id.  377  ; 
Williamson  v.  R.  R.  Co.,  29  N.  J. 
L.  311  ;  State  v.  Scudder,  32  Id. 
203  ;  Vreeland  v.  Bramhall,  39  Id. 
1  ;  Elizabeth  v.  Hill,  Id.  555  ; 
State  v.  Newark,  40  Id.  92  ;  Warsh- 
ung  v.  Hunt,  47  Id.  256;  NeflE's 
App.,  21  Pa.  St.  243  ;  Fisher  v. 
Farley,  23  Id.  501  ;  Becker's  App., 
27  Id.  52  ;  Dewart  v.  Purdy,  29  Id. 
113;  Ilimsen  v.  Nav.  Co.,  32  Id. 
153,  156;  Taylor  v.  Mitchell,  57  Id. 
209  ;  White  v.  Crawford,  84  Id. 
433 ;  People's  Fire  Ins.  Co.  v. 
Hartshorue,  Id.  453;  Stockwell  v. 
McHenry,  107  Id.  237;  Von 
Schmidt  v.  Huntington,  1  Cal.  55; 
Smith  v.  Aud.  Gen.,  20  Mich.  398; 
Saunders  v.  Carroll,  12  La.  An. 
793  ;  McGcehan  v.  Burke,  37  Id. 
150  ;  Plumb  v.  Sawyer,  21  Conn. 
351  ;  Hastings  v.  Lane,  15  Me.  134; 
Torrey    v.    Corliss,    33    Id.    333  ; 


Sturgiss  v.  Hull,  48  Vt.  302  ; 
Briggs  v.  Hubbard,  19  Id.  86  ; 
Ricliardson  v.  Cook,  37  Id.  599  ; 
Morgan  v.  Perry,  51  N.  H.  559  ; 
State  V.  Atwood,  11  Wis.  422; 
Seaman  v.  Carter,  15  Id.  548  ; 
Finney  v.  Ackerman,  21  Id.  268 ; 
Gaston  v.  Merriam,  33  Minn.  271 ; 
State  V.  Waholz,  28  Id.  114;  Ker- 
linger  v.  Barnes,  14  Id.  398  ; 
Alexander  v.  Worthington,  5  Md. 
471  ;  State  v.  Auditor,  41  Mo.  25  ; 
State  v  BJakeman,  52  Id.  578  ;, 
State  V.  Ferguson,  62  Id.  77;  Ryan 
V.  Hoffman,  26  Ohio  St.  109; 
Pritchard  v.  Spencer.  2  Ind.  486  ;. 
Aui-ora,  etc  ,  Co.  v.  Holthouse,  7 
Id.  59  ;  Hopkins  v.  Jones,  22  Id. 
310  ;  Merwin  v.  Ballard,  66  N.  C 
398;  Forsvth  v.  Marburv,  R.  M. 
Charlt.  (Ga.)  324  ;  Bond  v^.  Munro, 
28  Ga.  597;  White  v.  Blum,  4  Neb. 
555  ;  State  v.  Stein,  13  Id.  529  ; 
Stewart  v.  State,  13  Ark.  720 ; 
Parsons  v.  Payne,  26  Id.  124 ; 
Martin  v.  State,  22  Tex.  214 ;  and 
cases  infra. 

'^^  It  is  a  rule  of  construction 
established  by  law,  in  Georgia 
and  Louisiana,  that  an  act  can 
prescribe  only  for  the  future, 
and  in  Kentucky,  California, 
Georgia,  Louisiana,  Dakota,  and 
Utah,  that  it  can  have  no  retro- 
spective ODcration  :  Slimson, 
Amer.  Stat.  L.,  p.  143.  ^  1044 

"  Giles  V.  Giles,  22  Minn.  348. 

'^*  Levering  v.  Shockey,  100  Ind.. 
558 

'■^9  State  v.  Hill,  32  Minn.  275. 


3(U  ri:tuoacti(^x.  [§  272 

statute,  and  of  all  other  fees  received  by  liini  on  account  of 
services  rendered  in  a  certain  department  of  his  office/"     So, 
an   act  declaring  that  munici})al  lands  used  for  agricultural 
Durposes  should  be  taxed  higher  for  municipal  purposes,  than 
township  lands  for  township  purposes;"  and  another  declar- 
ino- county  treasurers  ineligible  for  more  than  two  consecutive 
terms,"  were  each  held  devoid  of  retrospective  force,  so  that 
-the  former  act  did  not  interfere  with  assessments  made  before 
its  passage,"  and  the  latter  did  not  forbid  a  treasurer  in  office 
for  a  second  term  to  hold  it  again.""     A  statute  giving  exclu- 
sive, in  the  place  of  forUiCr  concurrent,  jurisdiction   would 
not  be  construed  as  operating  retrospectively  if  another  con- 
struction could   be  fairly  given   to  it;"  nor  one  doing  the 
converse,  where  the  effect  would  be  to  subject    a   party   to 
damages."     And    an    act    respecting    written   acknowledg- 
ments of  rights  of  action  will  be  given  a  prospective  opera- 
tion only  ; "  as  also  an  act  establishing  a  rule  for  the  compu- 
tation of  time,"  and  an  act  relating  to  appeals;''  and  one  for 
the   prevention  of   the  spread  of  infectious  and   contagious 
diseases,  and  imposing  upon  the  state  liability  for  expenses 
incurred    for    that    purpose;'"  and  so,   too,   a   by-law   of    a 
municipality  passed  under  its  charter  authorizing  it   to  pre- 
scribe terms  upon  which  certain  persons  might  reside  therein." 
§  272.   Prospective    Eflfect    Apparently   Contrary   to    Words.— 
[Even  where  there  is  that  in   the  statute  which  would  seem 
upon  other  i)rinciples  of  interpretation,  to  require  a  retroac- 
tive construction,  the  presumption  against  tlie  same,  in  the 
absence  of  an  intention  otherwise  demonstrable  to  give  tlie 
-statute  such  an  effect,   will  overcome  the  influence  of  such 


»<>  Henderson  v.   State,   96  Ind.      St.  500. 


437 


29  White  V.  Blum,  4    Neb.  555  ; 


3'*Stilz  V.  Indianapolis,  81  Ind.  so  as  not  to  apply  to  cases  (Icter- 

582  mined    before   its   passage  :   Ibid. 

"'  State  V.  Stein,  13  Neb.  529.  See  Cockran  v.  Douglass.  25  Pitts. 

83S!ilzv.  Indianapolis,  supra.  L.  J.  (Pa.)  120,  post,  g  272.     But 

^  State  V.  Stein,  13  Neb.  529.  see  post,  §g  285  ct  seq. 

«  Stale  V.  Littletield,  93  N.  C.  ""^  State     v.     Brailtord,    30    Ga. 

614      See  post  i^  288  422  ;  so  that  the  state  would  not  be 

««'  McMichael  v.   Skilton,  13  Pa.  liable  thereunder  for  such  expenses 

gt.  215.  incurred  before  the  passage  of  the 

=*'  Van  Kensselaer  v.  Livingston,  act :  Ibid.                ,„    ,  . 

12  Wend.  (N.  Y.)  490.  •"   <^oslin     v.      Washmgton,     2 

38  Edmuudson  v.  Wragg,  104  Pa.  Cranch  C.  Ct.  254. 


§  272]  KETKO ACTION.  oGS- 

rules.  Thus,  wliero  an  act  aineuded  and  ru-cnactcd  a  former 
one,  which  provided  that  every  convej-ancc  not  recorded 
should  be  void  as  against  attachment  and  judgment  creditors, 
but  omitted  the  words  "  hereafter  nKide,"  contained  in  the 
earlier  act,  it  was,  uevertheless,  held  that  the  act  could  not 
apply  to  conveyances  executed  prior  to  the  statute  re-enacted 
by  it."  And  so,  as  it  has  been  seen"  that  the  strict  gram- 
matical sense  of  the  language  used  by  the  Legislature  may  give 
way  to  a  construction  required  by  other  rules  of  interpreta- 
tion, words  apparently  importing  a  retroactive  effect  will 
yet,  in  the  absence  of  other  reasons  supporting  such  literal 
construction,  be  so  construed  as  to  produce  a  prospective 
operation.  Thus,  an  act  which  makes  certain  provisions 
"  when  any  judgment  is  obtained  "  is  construed  as  referring 
to  such  cases  only  "  when  any  judgment  is  hereafter 
obtained  ;""  and  so  the  provisions  of  an  act  regulating,  with 
additional  requirements,  appeals  "  in  all  cases  in  which 
judgment  shall  have  been  rendered.""  Where,  indeed,  the 
act  is  not  of  immediate  operation,  but  limited  to  take  effect 
at  a  future  date,  that  form  of  grammatical  construction 
requires  a  prospective  operation.  Thus,  in  a  statute  passed 
in  April,  to  go  into  operation  in  October  of  the  same  year, 
it  was  provided  "  that  in  all  cases  of  partition  of  real  estate 
in  any  court,  wherein  a  valuation  shall  have  been  made  of 
the  whole  or  parts  thereof,  the  same  sliall  be  allotted  to  such- 
one  or  more  of  the  parties  in  interest,  who  shall,  at  the 
return  of  the  rule  to  accept  or  refuse  to  take  at  tlic  valuation 
offer  in  writing  the  highest  price  therefor  above  the  valua- 
tion returned,"  etc.  It  was  said  by  the  Supreme  Court  of 
Pennsylvania,  in  denying  to  this  provision  any  retrospective 
force  :  "  This  new  rule  of  allottment  [the  Legislature] 
enacted  should  not  go  into  effect  before  the  1st  of  October, 
1856.     As  if  they  had  said,  whenever  a  valuation  in  j)arti- 

•*2  Gaston  v.  Merriam,  33  Minn,  damages  which  "may  be  done" 
271.  The  variation  in  thclanguage  was  held  to  be  grammatically  pros- 
would,  under  other  circumstances,  peclive,  whilst  "may  have  been 
have  been  a  potent  indication  of  a  done"  would  indicate  the  reverse  : 
change  of  intention:  see  post,  Ihmscn  v.  Nav.  Co.,  33  Pa.  St. 
§§  382,  384.  153,  156. 

*^  Ante,  §  81.  «  Cochran  v.  Douglass,  25  Pitts. 

«  State  v.  Connell,  43  N.   J.  L.  L.  J.  (Pa.)  120  ;  Act  20  Apr.  1876^ 

106.     An  act  imposing  liability  for  P.  L.  43.     See  post,  §  288. 


?,('>{)  RETROACTION.  [§  272 

tion  sliall  have  been  made  after  the  1st  of  October,  1S56, 
the  new  rule  of  allottincnt  shall  apply.  This  phrase,  '  shall 
have  been  made,'  is  an  instance  of  the  future  perfect  tense. 
It  contemplates  a  valuation  ])erfccted,  but  perfected  in 
future,  and  the  future  of  this  statute  was  all  subsequent  to 
the  specified  date.  Had  it  been  repealed  Ijcfore  that  date, 
it  would  have  had  no  future  existence,  and  no  operation 
whatever.  Though  not  repealed,  it  must  not  have  a  con- 
struction that  would  give  it  effect  during  the  period  of  its 
suspended  animation,  for  this  were  to  violate  the  will  of  its 
creator.  Giving,  then,  to  the  words  before  us  their  genuine 
grammatical  meaning,  we  hold  them  applicable  not  to  a 
valuation  made  after  the  enactujent  of  the  law,  but  before  it 
took  effect,  but  only  to  valuations  made  after  the  law  went 
into  operation  ;  and  thus  construed,  the  statute  commences, 
for  every  purpose,  in  f  uturo,  as  Blackstone  said  all  laws  should 
do.""  Similarly,  the  words  "  already  sustained — '"'  "here- 
tofore" and  "  hereafter  ""  are  to  be  understood  as  referring 
to  the  date,  not  of  the  passage,  of  an  act,  but  of  its  taking 
effect ;  and  even  in  an  amendment,  the  word  "  heretofore" 
was  held  to  mean  before  the  passage  of  the  amendatory,  not 
of  the  oriofinal,  act."  Where  a  general  statute  declared, 
that,  unless  a  different  time  is  prescribed  in  any  statute  for 
its  taking  effect,  it  shall  go  into  operation  ninety  days  after 
its  passage,  an  act  was  passed  giving  a  lien  for  work  and 
materials  in  the  construction  of  a  railroad,  which  should  be 
prior  to  all  other  incumbrances  placed  on  the  property, 
*'  subsequently  to  the  passage"  of  the  act,  it  was  held  that  a 
mortgage  executed  prior  to  the  passage  of  the  act  was  a 
superior  lien  to  that  of  a  claim  for  materials  furnished  after 
its  passage,  but    before  the  expiration  of   the   ninety  days 

«  Dewart  v.  Purdy,  29  Pa.  St.  McKibben  v.    Lester,  9   Ohio   St. 

113,  117.     Comp.  post.  §  284.  G27,  where  the  phrase  "under  the 

•*Mackman   v.  Garland,  64  Me.  restrictions  and  limitations  herein 

133.  provided,"  occurring  in  an  aniend- 

48  Charles  v.  Lamberson,  1  Iowa,  ment,  was  construed  as  referring 
435.  to  the  resU-ictions  and   limitations 

49  People  V.  Wayne  Circ.  Judge,  provided  in  the  original  act  as  it 
37  Mich.  287.  But  see  Moore  v.  stood  after  all  the  amendments 
Mausert,  49  N.  Y.  332,  where  the  made  thereto  were  introduced  in 
word  "hereafter,"  in  an  amend-  their  proper  places  therein.  See 
ment  was  held  to  mean  after  the  ante,  §^  15)5-196. 

passage  of  the  original  act :  and 


§  273]  RETROACTION.  3G7 

when  the  act  could  take  effect,  the  word   "  passage  "  being 
thus  construed  as  "  taking  effect.'""] 

§  273.  Acts  Affecting  Vested  Rights.— It  is  chiefly  where  the 
enactment  would  prejudicially  affect  vested  rights,  or  the 
legal  character  of  past  transactions,"  that  the  rule  in  question 
prevails."  Every  statute,  it  has  been  said,  which  takes 
away  or  impairs  vested  rights  acquired  under  existing  laws, 
or  creates  a  new  obligation,  or  imposes  a  new  duty,  or 
attaches  a  new  disability  in  respect  of  transactions  or  con- 
siderations already  past,  must  be  presumed,  out  of  respect 
to  the  Legislature  {a),  to  be  intended  not  to  have  a  retro- 
spective operation  (h).  [On  the  contrary,  it  was  said  in  a 
recent  case  in  England,  prima  facie  the  general  rule  of  con- 
struing acts  of  Parliament  is  that  they  are  prospective,  and 
rights  are  not  to  be  interfered  with  unless  there  are  express 
words  to  that  effect."  And  this  requisite  of  express  declar- 
ation, positive  expression,  and  the  like,  has  been  repeatedly 
insisted  npon  in  decisions  in  this  country  f*  and  it  has  been 
stated,  that,  however  broad  and  general  in  its  terms,  a 
statute  is  not  to  be  construed  as  interfering  with  existing 
contracts,  rights  of  action,  or  suits,  unless  the  intention  that 
it  shall  so  operate  is  expressly  declared. ^^  So  far  as  rights 
and  obligations  resting  upon  contracts  are  concerned,  consti- 
tutional provisions  interpose,  in  America,  insuperable  obsta- 
cles to  legislative  impairment  or  destruction  of  the  same, 
and  similar  provisions  in  some  of  the  states  protect  rights  of 

60  Andrews  V.  R.  R.  Co.,  16  Mo.  Boweu    v.    Striker,    100  Ind.    45, 

App.  299.      See  for  like  construe-  and    many    of   the  cases  already 

tion  of  the  word  "passage,"  under  referred  to. 

a  similar  constitutional  provision  :  {a)  Per  Chancellor  Kent  in  Dash 

Harding  v.  People,   (Col.)  15  Pac.  v.  Van  Kleeck,  7  Johnson,  502,  &c. 

Rep.  727  ;  ante,  g  181.  (b)  Per    Story,   J.,   in    Soc.    for 

"  McMaster  v.  State,  103  N.  Y.  Propag.  of  Gosp.    v.    Wheeler,    3 

547.  Gallisou,  139  ;  and  see  per  Chase, 

*^  See  Albee   v.   May,   2   Paine,  J.,  in    Calder  v.  Bull,    3   Dallas, 

74;  Hickson  v.  Darlovv,  52  L.  J.,  386,  390. 

Ch.  D.  454  (aff'd  L.  R.  23  Ch.  D.  "  AUhusen  v.  Brooking.  L.  R. 

690) ;      Allbusen      v.      Brooking,  26  Ch.  D.  564,  per  Chitty,  J. 

L.    R.  26  Ch.  Div.  564;  Dash  v.  "  gee  Bedford  v.  Shilling,  4  Serg. 

Van  Kleeck,  7  Johns.  (N.  Y.)  477  ;  &  R.  (Pa.)  400,  408,  per  Tllgbman, 

Sayre  v.  Wisner,  8  Wend.  (N.  Y.)  C.  J.  ;  Lefever  v.  Witmer,  10  Pa. 

661  ;    Quackeubush    v.    Danks,    1  St.  506,  507,  per  Gibson,  C.  J. 

Deuio   (N.    Y.)   128  ;    Bedford  v.  ^^  Berley  v.  Rampacher,  5  Duer 

Shilling,  4  Serg.  &  R.  (Pa.)  401  ;  (N.  Y.)  183  ;  People  v.  Supervisors, 

State    V.    Atwood.    11    Wis.    422:  63  Barb.  (K  Y.)  85. 


368  RKTRO  ACTION.  [§274 

propcrtj' and  of  action.  Beyond  that,  whilst  tlierule  above 
stated  is  probably  too  strict  and  narrow,"  whatever  the  legis- 
lative power  upon  the  subject  may  be,  an  intention  to  sub- 
vert rights  of  property,  vested  rights,  should  never  be 
imputed  to  a  statute  unless  indicated  in  such  terms,  having 
regard  to  all  legitimate  means  of  interpretation,"  as  admit 
of  no  doubt,  but  show  a  clear  design  to  effect  that  particular 
and  specific  purpose."  General  terms  which  may,  but  must 
not  of  necessity,  apply,  and  which  the  Legislature  has  not 
particularly  applied  to  the  case,  and  consequently  implied 
or  constructive  repeals,  cannot  effect  it."J 

§  274.  The  provision  of  the  Statute  of  Frauds,  that  no 
action  should  be  brought  to  chai'ge  any  person  on  any 
agreement  made  in  consideration  of  marriage,  iinlc;js  the 
agreement  were  in  writing,  was  held  not  to  apply  to  an 
agreement  which  had  been  made  before  the  Act  was  passed 
(a).  The  Mortmain  Act,  in  the  same  way,  was  held  not  to 
apply  to  a  devise  made  before  it  was  enacted  {h). 
And  the  Apportionment  Act  of  1870,  which  enacts  that 
after  the  passing  of  the  Act,  rents  are  to  be  considered  as 
accruing  from  day  to  day,  like  interest,  and  to  be  apportion- 
able  in  respect  of  time  accordingly,  would  seem  not  to  apply 
to  a  will  made  before  the  Act,  though  the  testator  died  after 
it  came  into  opeaation  (c).  [So,  the  Pennsylvania  act  of 
1855,  requiring  devises,  etc.,  to  charities  to  be  attested  by 
two  disinterested  witnesses,  and  made  at  least  one  month 
before  the  testator's  death,  was  held  inapplicable  to  a  will 
executed  before  the  passage  of  the  act,  but  taking  effect 
thereafter ;°°  and  the  act  of  1833,  providing  that  real  estate 
acquired  by  the  testator  after  the  date  of  his  will  should  pass 
by  a  general  devise,  was  similarly  restricted.*']     The  testator 

"  See  post,  §§  283  seq.  (6)  Atty.-Genl.  v.  Lloyd,  3  Atk. 

"  See  ante,  §  271.  S.'il  ;  Asiiburnham  v.  Biadsliaw,  2 

^^  See  Rutberford  v.  Greene,  2  Atk.  P.f). 

Wheat.  196.  (.:)  Jones   v.  Ogle,  L.   R.    8  Ch. 

"'  See    Rstberford    v.    Greene,  192. 

supra.  «<>  Taylor  v,  Mitchell,  57  Pa.  St. 

(rt)  Gilmore  v.    Shuter,   2  Lev.  209. 

227  ;  2  Mod.  310 ;  Ash  v.  Abdy,  3  o'  Mullock  v.  Souder,  5  Watts  & 

Swanst.    664.      gee    also    Doe    v.  S.  (Pa.)  198.     Comp.  post,  §§  284, 

Pai^P,  5  Q.   B.  767  ;  Doe  v.  Bold,  292. 
11  Q.  B.  127. 


§  275]  RETROACTION.  360 

was  presumed  to  have  in  view  the  state  of  the  law  v/hen  he 
made  his  will."^  The  contrary  presumption  that  the  testator 
who  left  his  will  unaltered  after  the  Act  was  passed,  intend- 
ed that  it  should  operate  on  the  will  (a)  would  imply  that 
he  knew  that  the  law  liad  been  changed.  So,  it  was  held 
that  the  Act  of  8  &  9  Yict.  c.  109,  which  made  all  wagers- 
void,  and  enacted  that  no  action  should  be  brought  or  main- 
.  tained  for  a  wager,  applied  onl}'^  to  wagers  made  after  the' 
Act  was  passed  (5);  and  the  Kidnapping  Act  of  1872,  which 
made  it  unlawful  for  a  vessel  to  carry  native  laborers  of  the 
Pacific  Islands  without  a  license,  did  not  apply  to  a  voyage 
begun  before  the  Act  was  passed  (c).  The  Bills  of  Sale 
Act  of  1882,  which  made  void  bills  of  sale  not  registered 
within  seven  days  of  their  execution,  was  held  not  to  apply 
to  instruments  executed  before  the  Act  came  into  operation. 
Compliance,  it  is  evident,  would  have  been  impossible 
where  the  deed  had  been  executed  more  than  seven  days 
before  the  Act  passed  {d).  The  20  Yict.  c.  19,  which 
declared  that  extra-parochial  places  should,  for  poor-law  and 
other  purposes,  be  deemed  parishes,  was  held  not  retrospec- 
tive, so  as  to  confer  the  status  of  irremovability  on  a  pauper 
who  had  resided  in  such  a  place  for  five  years  before  the 
Act  (e). 

§  275.  [Where  a  bounty  offered  by  a  statute  had  been 
earned,  its  reduction  in  amount  by  a  subsequent  statute 
amending  the  original  law  could  not  affect  the  right  ac- 
quired under  the  latter,"  Nor  was  a  statute  permitted  to 
have  a  retroactive  effect  so  as  to  cut  off  an   accepted  bid 

«2  Just  as  contracts  are  presumed  White,  33  L.  J.  Bey.  33. 

to    have    been  entered   into  with  (c)  36  &  87  Vict.  c.  19,  Burns  v. 

reference  to  the  laws  then  in  force,  Novrell,  5  Q.  B.  D.  444,  49  L.  J. 

which,  therefore,  are  to  be  deemed  468. 

as    forming    a    portion    of    their  (d)  Hickson  v.  Darlow,  53  L.  J. 

essence,    and    with    reference     to  Ch.  D.  453;  aff'd,  L.  R.  23  Ch.  D. 

which  they  are  to  be  construed :  690. 

see  Reynolds  v.  liull,  2   111.    35  ;  (e)  R.  v.  St.  Sepulchre,  28  L.  J. 

Feemster  v.  Ringo,  5  T.  B.  Mon.  M.  C.  187,  1  E.  &  E.  813  ;  and  see- 

(Ky.)  336 ;  Duckham  v.  Smith,  Id.  R.  v.  Ipswich  Union.  3  Q.  B.  D. 

373.  269  ;  Sunderland  v.  Sussex,  51  L. 

(a)  Per  Jessel,  M.  R.,  in  Hasluck  J.  M.  C.  33  ;  Barton  Regis  v.  Liver- 

V.  Pedley,  19  Eq.  374.  pool,  3  Q.  B.  D.  395  ;  Gardner  v. 

(6)  Moon  V.  Durden,  3  Ex.  33  ;  Lucas,  3  App.  583. 

Pettamberdass  v.  Tha6okorseydass,  ^^  People   v.    State   Auditors,    9 

7    Moo.    P.    C    339.     See     Exp.  Mich.  337. 

24 


370  RETROACTION.  [>;  275 

for  certain  work  where  the  acceptance,  under  the  law  in 
force  wlien  it  was  si<^nified,  made  the  same  binding."  An 
act  forbidding  the  enforcement  of  a  vendor's,  lien,  unless 
recorded,  after  a  conveyance  by  the  vendee,  could  not  alfect 
such  liens  acquired  before  the  passage  of  the  act,  though 
unrecorded,  because  then  the  lien  was  independent  of  any 
title-bond  or  mortgage,  and  was  a  vested  right  in  the  ven- 
dor.*'* So,  an  act  prohibiting  the  enforcement  of  judgments 
hy  the  sale  of  defendant's  property  in  certain  specified  cases 
was  held  inapplicable  to  judgments  rendered  before  its 
passing. °*  And  an  act  giving  to  administrators  certain 
powers  over  the  lands  of  defendants,  was  held  inapplica- 
ble to  cases,  and  not  to  authorize  them  to  take  possession  of 
lands,  the  property  in  which  had  vested  in  the  heirs  before 
its  passage."  So  the  statutes,  enlarging  the  rights  of  mar- 
ried women  over  their  property,  and  curtailing  the  interests 
of  husbands  in,  and  their  control  over,  the  same,  have  been 
uniformly  held  not  to  destroy  any  rights  in  such  property 
vested  in  husbands  at  the  date  of  their  enactment.**  And 
so  a  statute  changing  the  rule  as  to  dower.*'  An  act  abol- 
ishing a  district  in  a  county  for  the  election  of  a  revenue  com- 
missioner, providing  that  thereafter  the  county  should  have 

"  He   Prot.   Episc.    School,   58  law,    could    become   vested    only 

Barb.  (N.  Y.)  161.  upon  her  surviving  him.     By  the 

^^  Jordan  v.  Wisner,  45  Iowa,  65.  subsequent  act  of  1875,  it  was  made 

See  Evans  v.  Williams,  2  Dr.  &  S.  to  vest  upon  transfer  of  title  to  a 

324,  post,  §  276.  purchaser.     It  was  held  that  the 

^*  Lockiiart  v.    Tinley,   15  Ga.  latter  act  was  inapplicable  to  the 

496.  case  of  the  mortgage  relerred  to, 

"  Van  Fleet  v.   Van   Fleet,    49  so  as  to   affect  the  rights   of  the 

Mich.  610.  mortgagee  :  jMcGlothlin  v.  Pollard, 

''^  See    Jassoy  v.  Delius,  65   111.  81  Ind.  228.     See  same  principle 

469  ;   Bowden   v.    Gray,   49  Miss,  in  Leaser  v.  Owen  Lodge,  83  Id. 

547  ;  Lefever  v.  Witmer,  10  Pa.  St.  498,  as  to  act  1881  vesting  wife's 

505  ;    Mann's    App.,    50  Id.   375 ;  interest  on   execution  of  sheriff's 

Quigley  v.  Graham,  18  Ohio   St.  deed.     The    opposite    effect    was 

42  ;"Hershizer  v.  Florence,  39  Id.  given    to    an   act  destroying    the 

516;     Metrop.     B'k    v.     Hitz,     1  wife's  dower  in  the  husband's  lands 

Mackey  (D.  0.)  Ill  ;  Bookniglit  v.  sold  on  execution  during  his  life- 

Eptiug,  11  S.  C.  71  ;  Durreuberger  time  :    Slurtevant    v.     Jsorris,    30 

V.  Haupt,  10  Nev.  43  ;  Edwards  v.  Iowa,  65.      As  to  the  effect  of  the 

Edwards,  1 C.  «&E.  229.    See§278;  statute    of     limitutious     upon    a 

but  see  §  281.  widow's  right  of  dower   in  lands 

^'  Noel   V.    Ewing,   9   Ind.    37.  aliened  by  the  husband  in  his  life- 

When  a  mortgage  was  made,  the  time,  see  Care  v.  Keller,  77  Pa.  St. 

wife's     inchoate    interest    in     her  487. 
husband's  land,  as  then  defined  by 


§    2TG]  KETROACTION.  371 

but  one  commissioner,  and  providing  that  the  act  should  be 
in  force  from  its  passage,  was,  nevertheless,  held  not  to  abridge 
the  term  of  office  of  the  commissioner  then  acting,  or  his 
authority  to  act  during  the  period  for  which  he  was  elect- 
ed." An  act  giving  to  the  grantee  of  a  life-tenant,  when 
sued  by  the  remainderman,  upon  the  determination  of  the 
life  estate,  the  benefit  of  the  increased  value  of  the  premises 
by  reason  of  improvements  made  by  the  life-tenant,  would 
not  affect  the  rights  of  parties  except  where  the  improve- 
ments were  made  after  its  passage."  So,  an  act  giving  the 
husband  without  an  estate  by  the  courtesy  in  his  wife's  lands 
the  benefit  of  improvements  placed  by  him  upon  them  ;" 
and  an  act  giving  a  similar  benefit  to  bona  fide  occupants  of 
real  estate."  An  act  relieving  the  husband  of  his  com- 
mon law  liability  for  the  debts  of  his  wife,  dum  sola,  was 
held  not  to  be  retroactive,'*  and  a  statute  forbidding  eject- 
ment for  mortgaged  premises  before  foreclosure,  not  to  ap- 
ply to  mortgages  given  before  its  enactment."] 

§  276.  The  Bankrupt  Act  of  1849,  which  made  a  deed  of 
arrangement  "now  or  hereafter"  entered  into  by  a  trader 
with  six-sevenths  of  his  creditors  binding  on  the  non-execut- 
ing creditors,  at  the  expiration  of  three  months  after  they 
"  should  have  had  "  notice,  was  held  to  apply  only  to  deeds 
executed  after  the  passing  of  the  Act  {a).  To  apply  such 
an  enactment  to  past  transactions,  even  though  the  property 
had  been  completely  distributed  among  the  creditors  who 
had  signed,  would  have  been  so  unjust,  that  it  was  justifi- 
able to  seek  any  means  of  getting  rid  of  the  apparent  effect 
of  the  word  "  now,"  which  was  accordingly  understood  as  re- 
stricted to  arrangements  not  completed  but  yet  binding  in 
equity  at  the  time  when  the  Act  was  passed.       So,  a  non- 

■">  Peters    v,   Massey,   33  Gratt.  v,  Middleton,  8  Ex.  352,  22  L.  J. 

(Va. )  368.  Ex.  109  ;  Marsh  v.  Higgins,  9  C 

"  Folsom  V.  Clark,  73  Me.  44.  B.  551  ;  1  L.  M.  &  P.  258 ;  Larpent 

«  Shay's  App.,  51  Conn.  162.  v.  Bibby,  5  H.  L.  481  ;   24  L.  J. 

'3   Wilson    V.    Red   Wing    Sch.  Q.    B.    301  ;  Noble  v.  Gadban,  5 

Distr..  23  Minn.  488.  H.  L.  504  ;  Exp.  Phwnix  Bessemer 

■'•*  Clawson    v.     Hutchinson,    11  Co.,    45   L.   J.    Ch.    11.     See  also 

S.  C.  323.  Reed  v.  Wiggins,  13  C  B.  N.  S. 

"  Baldwin  v.  Cullen,  51    Mich.  220  ;  32  L.  J.  131.     Comp.  Elston 

33.     And   see   Hopkins  v.  Jones,  v.  Braddick,  2  Cr.  &  M.  435  ;  Exp. 

23  Ind.  310.  Dawson,  L.  R.  19  Eq.  433. 

{a)  12  &  13  Vict.  c.  106  ;  Waugh 


872  RETROACTION.  [§  276^ 

trader  was  held  not  liable  to  adjudication  as  a  bankrupt  in  re- 
spect of  a  debt  contracted  before  the  enactment,  which  first 
made  non-traders  liable  to  the  bankruptcy  laws  {a).  So,  it 
was  held  that  the  heavier  legacy  duty  imposed  on  annuities 
by  the  Succession  Act  of  1853,  did  not  affect  an  annuity 
left  by  a  testator  who  died  before  that  Act  came  into  oper- 
ation ;  though  the  payment  was  not  made  till  after  it  was  in 
force  (h).  The  first  section  of  the  Mercantile  Law  Amend- 
ment Act  of  1856,  which  provides  tluit  no  fi.  fa.  shall  preju- 
dice the  title  to  goods,  of  a  bona  fide  purchaser  for  value, 
before  actual  seizure  under  the  writ,  was  held  not  to  apply 
where  the  writ  had  been  delivered  to  the  sheriff  before  the 
Act  was  passed.  As  the  execution  creditor  had  the  goods 
already  bound  by  the  delivery  of  the  writ,  the  statute,  if  re- 
trospective, would  have  divested  him  of  a  right  which  he 
had  acquired  (c). 

The  14tli  section  of  the  same  Act,  which  provides  that  a 
debtor  shall  not  lose  the  benefit  of  the  Statute  of  Limita- 
tions by  his  co-debtor's  payment  of  interest,  or  part  payment 
of  the  principal,  was  held  not  to  affect  the  efficacy  of  such  a 
payment  made  before  the  Act  was  passed  (<f).  A  different 
decision  would  have  deprived  the  creditor  of  a  right  of 
action  against  one  of  his  debtors.  The  provision  in  the 
Judicature  Act  of  1875,  that  in  winding  up  companies 
whose  assets  are  insufficient,  the  bankruptcy  rules  as  to  the 
rights  of  creditors  and  other  matters  shall  apply,  was  held 
not  to  reach  back  to  a  company  already  in  liquidation  when 
the  act  was  passed  {e). 

The  23  &  2i  Yict.  c.  38,  s.  4,  which  enacted  that  no 
■judgment  which  had  not  already  been,  or  should  not  there- 
after be  entered  and  docketed,  should  have  any  preference 
against  heirs  or  personal  representatives,  in  the  administra- 
tion of  the  property  of  the  deceased  debtor,  did  not,  for  a  sim- 
ilar reason,  extend  to  a  judgment  obtained  against  a  debtor 
who  had  died  before  the  Act   was  passed  (/).     And  acts 

{a)  Williams  v.  Harding,  L.  R.  1  N.  550,  28  L.  J.  Ex.  286. 

n   L  0  {d)  Jackson  v.  Woolley,  8  E.  & 

Q))  lie  Earl  Cornwallis,  25  L.  J.  B.  7T6,  27  L.  J.  Q.  B.  448. 

Ex.  149,  11  Ex.  580.  (0  He  Suche  &  Co.,  1  Ch.  D.  48. 

(c)  Williams  v.  Smith,  4  H.   &  (/)  Evans  v.  Williams,  2  Dr.  & 


§§  277,  278]  RETROACTION.  373 

requiring  the  recorder  of  deeds,  etc.,  to  keep  a  direct  and  an 
adsectum  index,  and  providing  that  the  entry  of  recorded 
deeds  and  mortgages  in  such  indexes  shall  he  notice  to  all 
persons  of  the  recording  of  the  same,  was  held  not  to  be 
retroactive  so  as  to  apply  to  an  instrument  recorded  before 
the  passage  of  either  of  such  acts." 

§  277.  Acts  Imposing  New  Liabilities. — [An  act  imposing 
new  liabilities  will  not  be  construed  to  have  a  retroactive 
effect ;  as,  where  an  act  passed  in  1839,  provided  that  ten 
per  cent,  damages  should  be  awarded  against  an  adminis- 
trator, and  his  sureties  on  his  bond,  it  was  held  inapplicable 
to  a  bond  executed  in  1837."  So  an  act  prescribing  new 
penalties  against  defaulting  tax  payers  ;"  making  the  defence 
of  usury  unavailable  to  bona  fide  endorsers;'"  allowing  actions 
against  railroad  companies,  common  carriers  and  towns  for 
loss  of  life  by  negligence;*"  increasing  the  costs  on  convic- 
tion for  an  offence."  And  the  acts  imposing  liabilities  upon 
married  women,  in  respect  of  their  torts  and  contracts,  have 
been  held  not  to  apply  retroactively  to  their  torts  com- 
mitted, or  contracts  made,  before  the  passage  of  such  stat- 
■utes.**] 

§  278  Acts  Conferring  Benefits. — The  5  &  6  Vict.  C.  45 
which  first  gave  the  exclusive  right  of  public  performance 
of  copyright  music,  was  held  not  to  extend  to  compositions 
published  before  the  Act  {a).  Even  a  statute  which  confers  a 
benefit,  such  as  abolishing  a  tax,  would  not  be  construed 
retrospectively,  to  relieve  the  persons  already  subject  to  the 
burden  before  it  was  abolished.  An  Act  passed  in  August, 
providing  that  on  all  goods  captured  from  the  enemy,  and 

S.  324,  34  L.  J.  661.      [See  Jordan  To  apply  such  an  act  to  convic- 

V.     Wisner,    45    Iowa,    65,   ante,  tions  for  offences  committed  before 

§  275.]  its  passage,    it    was     there    said, 

■"B  Stockwell  V.  McHenry,  107  Pa.  would  be  to  give  it  an  ex  post  facto 

St.  237.  operation. 

"  Steen  v.  Finley,  25  Miss.  535.  s-  Sec  Bryant  v.  Merrill,  55  Me. 

'8  Barlruff  v.  Remey,  15  Iowa,  515  ;  Lee  v.  Lanahau,  59  Id.  478  ; 

257.  Hersbizer  v.  Florence,  39  Ohio  St. 

"  North     Bridgewater    B'k    v.  51G  ;  TurnbuU  v.  Forman,  L.  R.  15 

Copeland,  7  Allen  (Mass.)  139.  Q.  B.  D.  234  ;  Conolan  v.  Leyland 

80  Kelly  V.  R.  R.  Co.,  135  Mass.  L.  R.  27  Ch.  D.  632. 

448.  (a)  Exp.  Hutchins,  4  Q.   B.  D. 

81  Caldwell  v.  State,  55  Ala.  133.     90. 


374  RETROACTION.  [§  278 

made  prize  of  war,  a  deduction  of  one-third  of  the  ordinary 
duties  should  be  made,  did  not  apply  where  the  prize  with 
her  cargo,  though  condemned  in  September,  had  been 
brought  into  port  in  June,  when  certain  duties  accrued  due 
{a).  [So,  an  act  which  conferred  upon  "  any  borough"  a 
series  of  powers  not  theretofore  possessed  by  boroughs  under 
the  general  borough  law  of  the  state,  was  held  to  apply 
only  to  boroughs  incorporated  under  it.*'  And  where  a 
married  woman,  after  the  passage  of  an  act  conferring  certain 
enlarged  rights  and  powers  upon  married  women  in  respect 
of  their  property,  comes  into  possession  of  real  estate,  draw- 
ing her  title  through  a  will  that  took  effect  and  vested  lier 
right  of  property  in  the  land  before  the  passage  of  the  act,, 
her  rights  in  the  same  are  determined  by  the  law  as  it  stood 
prior  to  the  passage  of  the  enabling  statute/'] 

Although  the  Divorce  Act,  20  &  21  Vict.  c.  85,  pro- 
vided that  when  a  magistrate's  order  for  protecting  a  de- 
serted married  woman's  property  against  her  husband  was 
made,  the  woman  should  be,  and  "be  deemed  to  have  been 
during  the  desertion,"  capable  of  suing  and  being  sued, 
such  an  order  would  not  enable  her  to  maintain  an  action 
which  she  had  begun  before  the  order,  but  after  the  deser- 
tion (&).  The  5  &  6  Will.  4,  c.  83,  s.  1,  which  empowered  a 
patentee,  with  the  leave  of  the  Attorney-General,  to  enroll 
a  disclaimer  of  any  part  of  his  invention,  and  declared  that 
such  disclaimer  should  be  deemed  and  taken  to  be  part  of 
his  patent  and  specification,  was  construed  by  the  Court  of 
Exchequer  as  enacting  that  the  disclaimer  should  be  so  taken 

(a)  Prince  v.  U.   S.,  '2  Gallison,         (b)  The  Midland  R.  Co.  v.   Pye, 

204.  '  10  C.  B.  K  S.  179,  30  L.  J.  C.  P. 

83  Com'th  V.  Montrose,  52  Pa.  St.  314.       She    had  no   right    to   sue 

391.      There  were,  however,  in  the  before  the  order  was  obtained,  and 

context  certain  peculiarities  which  the  Act  did   not  intend  to  cast  a 

aided  this  restricted  and  exclusive-  liabilitj^   on    the    defendants    that 

ly  prospective  interpretation.  they  were  not   already  under,   and 

"  White   V.    Hilton,    2   Mackey  take    away    their    defences    from 

(D.    C.)  3;39.     And    see.    to   same  them,  by  such  an  order  :  Per  Erie, 

effect.  Carpenter  v.  Browning,  98  C.  J.,  lb.  ;  Comp.  Warne  v.  Beres- 

111.  282;  Harris' Settled  Est.,  L.  R.  ford,    infra,    §   286.      [As  to    the 

28     Ch.     D.     171  ;     Edwards    v.  right    of    married    women,    under 

Edwards,  1   C.  &  E.  229.     As  to  statutes  permuting    them    to    sue 

the  effect  of  such  acts   upon  the  alone  for  torts  done  them,  to  d()  so 

husband's    interest    in  the    wife's  upon     causes    of    action      arising 

lands  before  the  act,  see  ante,  §  before  the   passage  of  such  acts,. 

275.  see  post,  §  287.] 


§  279]  RETROACTION.  375 

"from  thenceforth";  tlie  iiiterpolaiioii  being  deemed  justifi- 
able to  avoid  the  apparent  injustice  of  giving  a  retrospective 
effect  to  the  dischiimer,  and  making  a  nian  a  trespasser  by 
relation  {a).  But  tliis  consti-uction  was  rejected  by  tlie 
Common  Pleas,  on  the  ground  that  the  enactment  really 
worked  no  injustice  in  operating  retrospectiveh'  {h). 

§  279.  Acts  Creating  Disabilities  and  Limitations.  —  [Corre- 
spondingly, statutes  imposing  new  disabilities  will  not  be 
presumed  to  intend  a  retroactive  application  of  their  pro- 
visions; as,  e.  (/.,  an  act  forbidding  banks  to  pay  interest  on 
deposits  f^  a  proviso  to  an  act  extending  the  charter  of  a 
bank,  that  it  should  not  take  more  than  six  per  cent,  dis- 
count, when  previously  it  had  been  allowed  seven  f'  or  an 
act  prohibiting  the  intermarriage  of  white  persons  with 
Indians."  It  was  also  held  that  an  act  providing  for  a  limi- 
tation to  three  years  of  all  tax  mortgages  and  tax  privileges, 
applied  only  to  future  cases  ;**  that  an  amendment  limiting 
the  time  within  which  actions  for  personal  injuries  must  be 
brought  to  one  year  did  not  apply  to  causes  of  action  accrued 
before  the  amendment  f^  and  so  as  to  an  act  changing  from 
three  years  to  one  the  limitation  as  to  proceedings  for  modi- 
fying or  vacating  a  final  order  or  judgment.""  Conversely, 
it  has  been  said  that  the  defence  of  the  statute  of  limitations, 
when  a  right  of  action  has  become  barred  by  the  same,  is  a 
vested  right,  not  to  be  impaired  by  subsequent  legislation," 
and  a  change  therein  has,  therefore,  been  held  inapplicable 
in  an  action  which  had  been  brought,  and  in  which  a 
replication  upon  the  old  statute  had  been  filed,  before  the 
statute  making  the  change  was  passed,"  and  generally  in 
suits  upon  causes  of  action  arising  anterior  to  the  enactment 
of  such  alteration  f^  and  an  act  reviving  an  earlier  one  which 

(a)  Perry  v.  Skinner,  2  M.  &  ^Y.         ^^  Goillotel    v.    New    York,    87 

471 ;    and   per    Cresswell,    J. ,    in  N.  Y.  441 ;  Carpenter  v.    Sliimer, 

Stocker  v.  Warner,  1  C.  B.  167.  24  Hun  (N.  Y.)  4G4. 

(5)  R.  V.  Mill,  10  C.  B.  379.  ^^  Lee  v.  Cook,  1  Wy.  Ter.  413. 

85  Hannum    v.    B'k,    1    Coldw.  See  post,  §§  284,  287. 
(Tenn.)  398.  *'  See  Ryder  v.  Wilson's  Ex'rs, 

8«  Pearce  v.  B'k,  33  Ala.  693.  41  N.  J.  L.  9. 

8'  Illinois  L.  &  L.  Co.  v.  Bonner,         ^^  Bradford  v.  Barclay,  42  Ala. 

75  111.  315.  375. 

88  State  V.  Recorder,  34  La.  An.         ^s  Bratton  v.  Guy,  12  S.  C,  42. 
178. 


376  EETROACTION.  [§  279 

permitted  executions  on  judgments  more  than  live  years 
after  entry  was  confined  to  judgments  thereafter  rendered." 
But  this  principle  seems  not  to  extend  to  statutes  limiting 
the  period  within  which  prosecutions  are  permitted  to  be 
brought  for  crimes.  Thus,  where  a  person  committed  a 
crime,  the  prosecution  for  which,  at  the  time,  was  limited 
to  two  years,  it  was  held  that  an  act  passed  after  the  expira- 
tion of  the  two  years,  repealing  that  limitation  and  extend- 
ing the  period  within  which  a  prosecution  might  be  brought 
to  three  years  beyond  the  orfginal  limit,  warranted  the 
prosecution  of  the  offender.**  Not  quite  so  far  goes  a  case 
which  arose  in  Pennsylvania  and  involved  the  discussion  and 
application  of  an  act  declaring  that  thereafter  the  offence  of 
forgery  should  not  be  deemed  barred  by  limitation,  when 
the  indictment  was  brought  or  exhibited  within  five  years 
after  the  commission  of  the  offence,  the  period  previously 
limited  having  been  two  years.  The  act  was  held  applica- 
ble to  the  case  of  a  person  who  had  committed  a  forgery 
within  two  years  before  its  passage,  but  more  than  two  years 
before  his  indictment.  It  was  said  that  the  statute  could 
clearly  not  be  classed  as  an  ex  post  facto  law,  as  it  did  not 
make  that  criminal  which  was  not  so  when  done,"  or  an  act 
punishable  in  a  manner  in  which  it  was  not  punishable  when 
committed  f  and  that,  as  the  two  years  had  not  completely 
run  between  the  commission  of  the  offence  and  the  passage 
of  the  act,  the  offender  had,  therefore,  at  the  later  date,  ac- 
quired no  right  to  an  acquittal  on  that  ground.  But,  the 
effect  of  the  preceding  case  is  approached  in  the  passage 
contained  in  the  decision  of  the  latter  :  "  An  act  of  limita- 
tion is  an  act  of  grace  purely  on  the  part  of  the  Legislature. 
Especially  is  this  the  case  in  the  matter  of  criminal  prosecu- 
tions. The  state  makes  no  contract  with  criminals,  at  the 
time  of  the  passage  of  an  act  of  limitation,  that  they  shall 
have  immunity  from  punishment  if  not  prosecuted  within 
the  statutory  period.      Such   enactments  are  measures  of 

9*  Mann  v.  McAtce,  ?.7  Cul.  11.  "   See    Fletcher     v.     Peck,     6 
9s  State  V.  Moore,   42  N.  J.    L.  Crancli,  13.8  ;  Shepherd  v  .People, 
208.  25  N.  y.  406  ;  Iluilung  v.  People, 
9«  Sec     Matter    of    Garland,    32  22  Id.  104.      Comp.  Rich  v.  Flan- 
How   241.  ders,  39  N.  II.  305. 


:§  280]  RETKOACTION.  377 

piil)lic  policy  only.  They  are  entirely  sul»ject  to  the  mere 
will  of  the  legislative  power,  and  may  be  ^hanged,  or  repealed 
•altogether,  as  that  power  may  see  fit  to  declare."  And  yet 
this  broad  doctrine  is  qualified  in  what  follows  :  "  Such  being 
the  character  of  this  kind  of  legislation,  we  hold  tliat,  in 
any  case  where  a  right  to  acquittal  has  not  been  absolutely 
acquired  by  the  completion  of  the  period  of  limitation,  that 
period  is  subject  to  enlargement  or  repeal.""  The  more 
extended  doctrine  of  the  !New  Jersey  decision  flows  from 
the  nature  of  the  reasoning  upon  which  it  is  based  ;  it  being 
argued,  that,  as  an  offender  against  a  statute,  which  is  re- 
pealed, may  yet  be  punished  under  it  when  revived  by  the 
subsequent  repeal  of  the  repealing  act,®*  there  is  nothing 
more  than  a  phantastical  distinction  to  be  drawn  between 
the  revival  of  a  right  to  prosecute,  when  such  right  has 
been  suspended  by  the  revocation  of  a  statute  in  which  it  is 
inherent,  and  the  revival  of  the  right  when  the  suspension 
has  been  the  result  of  lapse  of  time  under  a  statute  of  limi- 
tations,"""— such  a  statute,  in  no  sense,  operating  as  a  pardon 
of  the  offence.""] 

§  280,  What  not  within  Rule  against  Retroaction.  Inchoate 
Rights. — But  a  statute  is  not  retrospective,  in  the  sense  under 
consideration,  because  a  part  of  the  requisites  for  its  action 
is  drawn  from  a  time  antecedent  to  its  passing  (a).  The  5th 
section  of  the  Mercantile  Law  Amendment  Act,  which  en- 
titles a  surety  who  pays  the  debt  of  his  principal,  to  an 
assignment  of  the  securities  for  it  held  by  the  creditor, 
would  apply  to  the  case  of  a  surety  who  had  entered  into 
the  suretyship  before  the  Act,  but  had  paid  off  the  debt 
after  it  came  into  operation  (5).  The  2nd  section  of  the  In- 
fants'  Relief  Act,   which   enacts    that   no  action  shall   be 

98  Com'th  V.  Duffy,  96  Pa.    St.  ""   State  v.   Moore,   ubi  supra. 

506,  514.  Comp.   State  v.   Nichols,  26  Ark. 

53  Com'th  V.   Getchell,  16  Pick.  74. 

(Mass.)  452;  Com'th  v.  Mott,  21  Id.  (a)  Per  Lord  Denmnn  in  R.  v. 

492.  St.    Mary.    12   Q.   B.    127;    R.    v. 

'0"  State  V.  Moore,  supra,  at  p.  Christchurcli,  Id.  149.      See  R.  v. 

234  (see  the  briefs  of  counsel    in  Portsea,  7  Q.  R.  D.  884,  50  L.  J. 

that  case  for  a  collection  of  views  144.     Exp.  Dawson,  19  £q.  433. 

and   authorities  bearing-  upon  the  {b)  lie  Cochran's  Estate,  L.   R.  5 

question);    and    see    Bish.,    Stat.  Eo.  209. 
Crimes,  §§  265,  206. 


378  KETUOACTION.  §  280 

brought  on  a  ratification,  made  after  majority,  of  a  contract 
made  during  infancy,  was  lield  to  apply  to  ratifications  of 
contracts  made  before  the  Act  was  passed  {a).  The  Court 
of  Chancery,  which  acquired  jurisdiction  under  the  23  &  24 
Vict.  c.  35,  to  relieve  in  respect  of  the  forfeiture  of  a  lease 
in  consequence  of  a  breach  of  a  covenant  to  insure,  exercised 
this  new  jurisdiction  where  the  breach  occurred  after,  but 
the  lease  had  been  made  before  the  Act  was  passed  ip). 
And  the  provision  of  the  Conveyancing  Act  of  1881,  which 
relieved  tenants  against  forfeiture  for  breach  of  covenant, 
was  held  to  apply  to  a  case  where  judgment  had  been 
already  given  before  the  Act  was  passed,  and  the  landlord 
might  have  obtained  possession,  but  for  a  stay  of  proceedings 
to  give  the  tenant  time  to  appeal  (c).  [So,  an  act  authoriz- 
ing the  imposition  of  a  tax  according  to  a  previous  assess- 
ment.'"" Nor  does  this  objection  affect  an  act  enlarging  the 
powers  of  married  women  because  it  applies  to  women,  and  to 
property  belonging  to  women,  who  are  covert  at  the  date 
of  its  passage."'  Upon  a  similar  footing  would  seem  to  stand 
an  act  declaring  that  marriages  between  persons  within  the 
prohibited  degrees  of  consanguinity  should  not  be  pro- 
nounced void  after  the  death  of  either  of  the  parties  where  the 
marriage  was  followed  by  cohabitation  and  the  birth  of  issue; 
such  an  act  being  held  to  apply  alike  to  marriages  contracted 
before,  and  to  those  contracted  after,  the  passage  of  the 
same."'  And  so  an  act  "for  the  better  security  of 
mechanics"  was  held  applicable  when  the  work  was  done 
after  the  law  took  effect,  though  the  contract  therefor  was 
entered  into  before  its  passage."' 

-  (a)  Exp.  Kibble,  L.   R.   10  Ch.  L.  287. 

373.  '0^  Baity  v.   Cranfickl,  91  N.  C. 

(ft)  Page  V.  Bennett,  3  Giff.  117,  298.      However,  acls  logitiniatiug 

29  L.  J.  Cb.  398.  cliildreu   are    liberally   eonstrued. 

(c)"44   &  45   Vict     c.  41.    s.   14  ;  See  ante,  §  108,  Brower  v.  Bowers, 

Quilter   V.    Mapleson,  9  Q.  B.  D.  1  Abb.  App.  Dec.  (N.  Y.)  214. 

672.  '"•'   Miller    v.    Moore,    1    E.    D. 

10-    Locke    V.    New   Orleans,    4  Smitb  (JST.  Y.)  739.      And  see  post, 

Wall.  172.    Bee  ante,  §  260,  note.  ^  287.      But  see  Sbuffleton  v.  Hill, 

•"»  See  Goodyear  v.  Iliimbaugb,  .62  Cal.  483,  where  un  act  giving  a 

13  Pa.  St.  481  ;  Hill  v.   Goodman,  lien  to  loggers,  etc.,  was  held  not 

1   Woodw.    (Pa.)    207 ;    Cherokee  lo  apply  where  tbe  contract  was 

Lodge    V.    White,    6a    Ga.     742.  entered  into  before  tbe  passage  of 

Coinp.  Navlor  v.   Field,  29  N.  J.  the  act. 


§  281]  KETRO ACTION.  379 

§  281.  [Again,  mere  inchoate  rights,  aepending  for  their 
original  existence  upon  the  hiw  itself,  may  be  abridged  or  mod- 
ified by  the  Legishiture  at  its  pleasure,  and  statutes  will  not  be 
presumed  not  to  affect  such  rights  existing  in  an  unperfected 
state  at  the  time  of  the  enactment/""  As  a  general  rule, 
whenever  a  statute  gives  a  right,  in  its  nature  not  vested, 
but  remaining  executory,  if  it  does  not  become  executed 
before  a  repeal  of  the  law  giving  it,  it  falls  with  the  law  and 
cannot  be  afterwards  enforced.'"  So,  the  right  to  a  penalty 
not  reduced  to  judgment  falls  with  the  repeal  of  the  statute 
creating  the  right  of  action,  and  cannot  be  afterwards 
enforced."'  And  so,  where  the  law  has  predicated  a  right 
of  one  of  two  parties  upon  a  certain  relation  between  them, 
as  to  property  owned  or  to  be  acquired  by  either  of  the  parties, 
it  may  provide  for  the  forfeiture  of  that  right  for  non-fulfill- 
ment of  the  obligations  of  such  relation,  not  only  in  so  far  as 
the  same  shall  be  entered  into  in  the  future,  but  also  as 
regards  rights  springing  as  to  future  property,  from  such 
relations  entered  into  in  the  past.  Thus,  it  was  held  that  an 
act  allowing  a  married  woman  deserted  by  her  husband  to 
convey  her  real  estate  by  her  own  sole  deed,  without  his 
joinder,  and  thereby  destroying  his  curtesy  in  the  same, 
applied  where  the  marriage  was  contracted  before  the  passage 
of  the  act  as  to  lands  acquired  after  the  same.  In  answer  ta 
the  claim,  that,  before  the  passage  of  the  act,  the  husband 
had  such  a  vested  right,  not  only  in  the  property  then  owned 
by  the  wife,  but  also  in  that  which  she  might  subsequently 
acquire  during  their  marriage,  by  virtue  of  the  inherent  power 
of  the  marriage  contract,  without  regard  to  the  performance 

'06  Smith  V.   Packard,  12  Wis,  See  ante,  §  257.     It  was  held,  in 

371- and  see  People  V.  Livingstone,  Tobin  v.    Hartshorn,    69   la.    648, 

6  Wend.  (N.  Y.)  526,  post,  S^  290.  that  a  penalty  provided  by  statute 

101  Van  Inwageu  v.  Cliicago,  61  to  enforce  tlie  payment  ot  a  ta.x 
111.  31  :  so  held  with  reference  to  voted  in  aid  of  a  railroad  was  but 
the  right  of  a  city  to  claim  (under  a  remedy  for  its  enforcement  (see 
a  local  act  which  was  held  §§  287,  290),  in  which  the  corpora- 
repealed  by  a  later  general  one  tion  had  no  vested  right,  except  so 
making  a  different  disposition  of  far  as  the  penalty  (which  accrued 
the  whole  matter)  for  the  city  monthly)  had  ah-eady  accrued,  and 
treasury  2  per  cent,  of  the  prcml-  that  a  repeal  of  the  statute  cut  off 
urns  effected  by  insurance  com-  its  further  operation  as  to  a  tax 
panics  not  incorporated  under  the  already  voted.  Comp.  Brownmg 
laws  of  the  state.  v.  Cover,  108  Pa,  St.  595. 

108  State  v,  Youmans,  5  Ind.  280, 


-380  KETROACTION.  [§  282 

of  that  contract  on  his  part,  and  as  a  right  acquired  at  its 
inception,  which  could  not  be  abridged,  altered  or  nioditied  by 
any  power  short  of  his  own  will,  so  long  as  the  marriage 
relation  was  not  legally  dissolv-ed,  it  was  said  by  tlie  court : 
"  But  the  statement  of  this  proposition  is  its  own  refutation. 
The  very  premise  on  which  the  Act  is  founded  is  that  the 
marriage  contract  has  been  violated  ;  that  the  husband  has 
deserted  his  wife  and  refuses  to  support  and  maintain  her. 
.  .  But,  independently  of  the  arguments  which  ma^^  be 
drawn  from  the  nature  of,  and  duties  involved  in,  the 
marriage  contract,  .  .  [the  husband's]  right  to  curtesy  in 
his  wife's  estate  was  no  part  of  the  marriage  contract,  but  it 
resulted  from  the  operation  of  statutory  enactments  existing 
at  the  time  of  her  death.'"*  .  .  [Her]  title  to  the  property 
in  dispute  had  no  existence  until  after  the  passage  of  the 
Act  .  .  and  until  the  acquisition  of  that  title  [he]  had 
no  right  in  the  premises  inchoate  or  otherwise.  .  .  On 
the  other  hand,  whatever  rights  he  may  [thereafter]  have 
had  therein  he  held  in  subjection  to  the  then  existing  laws."" 

§  282.  Effect  of  Legislation  in  General  upon  Pending  Causes. — 
In  general,  when  the  law  is  altered  pending  an  action,  the 
rights  of  the  parties  are  decided  according  to  the  law  as  it 
existed  when  the  action  was  begun,  unless  the  new  statute 
shows  a  clear  intention  to  vary  such  rights.  Thus,  the 
Medical  Act,  21  &  22  Yict.  c.  90,  which  enacts  that  no 
person  shall,  after  the  1st  of  January,  1859,  recover  any 
charge  for  medical  treatment  "  unless  he  shall  prove  at  the 
trial"  that  he  was  on  the  Medical  Register,  was  held  not  to 
apply  to  an  action  for  medical  services,  begun  before  that 
date,  but  tried  after  it  (a).  An  administration  bond  given 
to  the  Ordinary  not  being  assignable  until  the  21  &  22  Vict. 
c.  95,  an  action  begun  by  the  assignee  before  that  Act  was 


*•"  See  the    same  doctrine  as  to  i'"  Moningcr  v.  Rituer,  104  Pa. 

dower  in  Pennsylvania:  Mclizct's  St.  298. 

App.,  17  Pa.    St.  440.      And  see  («)  Tbistletnn  v.  Frcwer,  31  L. 

Guerin  v.    Moore,  25  Minn.  4G3  ;  J.  Ex.  230 :  Wright  v.  Greenroyd, 

Morrison  v.  Rice,  35  Id.  43G,  as  to  1  B.  &  S.  758,  31  L.  J.  4.     Comp. 

the  right  of  the  Legislature  to  talie  Leman  v.  Housley,  L.  R.  10  Q.  B. 

away  the  inchoate  right  of  dower.  66. 


§  283]  KETROACTION.  381 

passed,  was  held  not  maintainable  after  it  came  into 
operation  (a).  [So,  an  act  declaring  inapplicable  to  pros- 
ecutions for  misdemeanors  a  law  which  forbade  the  conviction 
of  a  defendant  in  a  criminal  case  upon  the  uncorroborated 
evidence  of  an  accomplice  was  held  not  to  affect  a  pending 
prosecution."*  To  like  effect,  as  to  inapplicability  to  pending 
actions,  was  the  rule  enforced  in  the  cases  of  an  act  requiring 
proof  of  payment  of  taxes  in  order  to  establish  a  claim  of 
adverse  possession;'"  of  an  act  providing,  that,  where  the 
plantiff  sued  as  a  corporation,  the  fact  of  incorporation  should' 
be  taken  as  admitted  unless  a  special  demand  for  proof  of  it 
be  made;"'  and  of  an  act  conferring  on  the  creditors  of  a 
defendant  in  an  attachment  proceeding  the  right  to  intervene 
and  defend  in  case  of  his  failure  to  do  so,  and  providing, 
that,  if  the  judgment  be  for  the  intervenor,  it  should  be  for 
any  damages  compensatory  or  vindictive,  found  by  the  jury, 
and  should  abate  the  suit,"*] 

§  283.  Where  Retrospective  Operation  is  to  be  Given.  Clear 
Intent. — It  is  hardlj'  necessary  to  add,  that,  [constitutional 
objections  being  out  way,]  whenever  the  intention  is 
clear  that  the  act  should  have  a  retrospective  operatioUj, 
it  must  unquestionably  be  so  construed,  however  unjust 
and  hard  the  consequences  may  appear  (5).  [Reti-ospec- 
tive  laws,  unless  ex  post  facto,  or  impairing  the  obligation  of 
contracts,  do  not  fall  within  the  prohibition  against  such 
laws  contained  in  the  constitution  of  the  United  States."'' 
Hence,  within  the  scope  of  legislative  power,  an  act  will, 
and  must,  be  given  a  retroactive  efficacy,  wliere  such  an  .in- 
tention   clearly    appears.""     This    proposition    has,    indeed, 

(a)  Young ^v.  Hughes,  4  H.  &  N.  C.  B.  496  ;  Bell  v.  Bilton,  4.  Biug. 

76.  615. 

'"  Hart  V.  State,  40  Ala.  33.  "^  Calder  v.  Bull,  3  Dall.    386  ; 

"'■^  Sharp  V.  Blankenship,  59  Cal.  Satterlee    v.   3IaUhewson.    2    Pet. 

288.  413  ;  Walsou  v.  Mercer,  8   Id.  88  ; 

'^^  Goodwin,  etc.,  Co.  v.  Darling,  People    v.    Supervisors,    63  Barb. 

133  Mass.  358.  (N.   Y.)  85;  Reed  v.  Bcall,  42  Miss. 

!'■*  Powers  V.    Wright,  62  Miss.  472  ;  Grim  v.  School  Distr.,  57  Pa. 

35  :  the  statute  is  said  to  be  reme-  St.   433  ;  Lane  v.    Nelson,  79  Id. 

dial  as  to  the  intervenor,  but  penal  407  ;     Smith    v.    Gilder,    26   Ark. 

as  to  the  plaintiff:  Ibid.    Compare,  527. 

upon  this  subject,    post,   §§  284,  '"^  Bambaugh   v.  Bambaugh,  11 

285,  et  seq.  Scrg.  &  U.  (Pa.)  19.    See  also  cases 

{b)  See  ex.  gr.  Stead  v.  Carey,  1  in  preceding   note,  and  §  271  and' 


382  KETKO ACTION.  [§  284 

been  qualified  so  as  to  concede,  when  there  was  no  escape 
from  sucli  construction,  a  retroactive  effect  to  statutes  which 
destroy  or  impair  no  vested  rights.'"  But  it  would  seem, 
that,  in  the  absence  of  any  restriction  contained  in  the  con- 
stitution of  the  particular  state,  going  beyond  that  imposed 
by  the  federal  constitutional,  and  expressly  forbidding  retro- 
sjicctive  legislation  or  protecting  vested  rights  against  the 
interference  of  the  Legislature,  this  limitation  is  untenable  ; 
and  that  the  fact,  that,  a  statute,  clearly  disclosing  an  inten- 
ion  to  act  retrospectively,  and  neither  obnoxious  to  the  objec- 
tion of  impairing  the  obligation  of  contracts,  nor  partaking 
of  the  character  of  an  ex  post  facto  law,''*  divests  vested 
rights,  gives  no  authority  to  the  courts  to  refuse  it  such 
operation,  however  repugnant  this  may  be  to  the  principles 
of  sound  legislation.'"  And,  however  strong  the  presump- 
tion against  an  intention  retrospectively  to  affect  the  rights 
of  parties  may  be  in  mere  private  cases  between  individuals, 
in  great  national  concerns,  the  contract  of  the  nation,  though 
sacrificing,  for  national  purposes,  individual  rights  acquired 
by  war,  must  receive  a  construction  conforming  to  its  evi- 
dent design,  the  question  of  compensation  being  one  for  the 
Government  to  consider,  not  for  the  courts.'"" 

§  284.  Where  no  Vested  Rights  Affected.— [Still  loss  potent  is 
the  presumption  where  no  vested  rights  are  affected.  Thus, 
where  an  act  declared,  as  a  rule  of  construction  of  wills,  that 
a  general  devise  or  bequest  of  the  testator's  real  or  personal 
estate  should  operate  as  an  execution  of  a  power  of  appoint- 
ment, unless  a  contrary  intention  appeared  in  the  will,  and 
declared  the  act  operative  as  to  the  wills  of  all  persons  who 

notes,   and  Smith   v.    Gilder,    26  '"  Weister  v.   ILide,  53  Pa.  St. 

Aik.  537.  474;   Grim  v.  Sch.  Distr.,  supra  ; 

''■'  See  People  v.  Spicer,  99  N.  Y.  Lane  v.  Nelson,  supra  ;  Calder  v. 
235  ;  Tilton  v.  Swift,  40  Iowa,  78  ;  Bull,  supra  ;  Satterlee  v.  Matthew- 
Baldwin  V.  Newark,  38  N.  J.  L.  son,  sui)ra  ;  Watson  v.  ]\Iercer, 
158  ;  Sturgis  v.  Hull,  48  Vt.  303.  supra.    And  sec  Clinton  liridge,  10 

"*  As  to  what   constitutes  such.  Wall.  454,  where  it  was  held  that 

see  Matter  of  Garland,  33  IIow.  an  act  legalizing  a  bridge   over  a 

241 ;   Fletcher  v.  Peck,  6  Cranch,  navigable  river  will  abate    a  suit 

138;  Shepherd  V.  People,  25  N.  Y.  ready     I'or    hearing,    brought     to 

40G ;   Com'lh  v.  Duffy,  9(5  Pa.  St.  enjoin      its     construction      as      a 

50G,  514  ;  ante,  §  279^  Caldwell  v.  nuisance.      See   also  Dent  v.  IIoI- 

Stale,    55  Ala.    133,    ante,   ^  277 ;  brook,  54  Cal.  145. 

State  V.  Moore,  43  N.  J.  L.  208,  '"«  The  Peggy,  1  Cranch,  103. 
231-2. 


§  284]  RETROACTION.  383 

slionld  die  after  the  date  of  its  passapje,  this  was  held  to  extend 
the  act,  in  terms,  to  all  cases  of  wills  executed  before,  as  well 
as  after  its  passage,  where  the  testator  died  since  the  same.'*'] 
An  Act  (33  and  34  Yict.  c.  29,  s.  14)  which  enacted  that 
every  person  "  convicted  of  felony'  "  should  forever  be  dis- 
qualified from  selling  spirits  by  retail,  and  that  if  any  such 
person  should  take  out,  or  have  taken  out  a  license  for  that 
purpose,  it  should  be  void,  was  held  to  include  a  man  who 
had  been  convicted  of  felony  before,  and  had  obtained  a 
license  after  the  Act  was  passed.  Although  the  expression 
"  convicted  of  felony"  might  have  been  limited  to  persons  who 
should  thereafter  be  convicted,  yet,  as  the  object  of  the  Act 
was  to  protect  the  public  from  having  beerhouses  kept  by 
men  of  bad  character,  the  language  was  construed  in  the  sense 
which  best  advanced  the  remedy  and  suppressed  the  mis- 
chief ;  though  giving,  perhaps,  a  retrospective  operation  to 
the  enactment  {a).  [Similarly,  it  was  held  that  a  statute  which 
made  one  who  had  been  convicted  of  the  offence  of  pett}- 
larceny,  and  who  should  again  commit  the  same  offence 
guilty  of  a  felony,  was  applicable  to  one  who  had  committed 
the  first  offence  prior  to  the  taking  effect  of  the  statute.'^'] 
The  provision  in  the  Bankrupt  Act  of  6  Geo.  4,  which  pro- 
tected "  all  payments  made  or  which  should  thereafter  be 
made"  by  a  bankrupt  before  his  bankruptcy,  necessaril}'  had 
a  retrospective  effect,  unless  the  expression  of  payments 
"  made  "  were  to  be  altogether  nugatory  {Jj).  After  the 
passing  of  Lord  Tenterden's  Act,  9  Geo.  4,  c.  14,  which  en- 
acted that  in  actions  grounded  upon  simple  contracts,  no 
verbal  promise  should  be  "  deemed  sufficient  evidence"  of  a 
new  contract  to  bar  the  Statute  of  Limitations,  it  was  held 
that  such  a  promise  given  before  the  Act,  and  which  was 
then  sufficient  to  bar  the  statute,  could  not  be  received  in 
evidence  in  an  action  begun  before,  but  not  tried  till  after 
the  passing  of  the  Act  {p).      This  decision  has  been   sup- 

121  Auberfs  App.,    109  Pa.    St.  122  Exp.  Gutierrez,  45  Cal.  430. 

447.     Comp.  aute,  §  274.  (p)  Churchill  v.  Crease,  5  Bins:. 

(a)  Hitchcock  v.  Way,  6  A.  &  E.  177. 

947  ;  K.  V.  Vine.  L.  R.  10  Q.  B.  195.  (c)  Hilliard  v.  Lenard,  M.   &  31. 

44  L.  J.  M.  C,  diss.  Lush.  .1. ;  Chap-  297  ;  Towler  v.  Chatterton,  6  Biui;-. 

pell  V.  Purday,  12  M.  &  W.  303.  258.      [The    Pennsylvania    Act  ^8 


38i 


KETKO  ACTION. 


[§284 


ported  on  the  ground  that  the  time  for  deciding  wliat  is  or 
is  not  evidence,  is  when  the  trial  takes  place;'"  and  that 
when  the  Act  told  the  judge  what  was  and  was  not  then  to 
be  evidence,  he  was  bound  to  decide  in  obedience  to  it  {a). 
But  some  stress  is  also  to  be  laid  on  the  circumstance  that 
the  Act  did  not  come  into  operation  until  eight  months  af- 
ter its  passing ;  for  the  concession  of  this  interval  seemed  to 
show  that  the  hardship  in  question  had  been  in  the  contem- 
plation of  the  Legislature  and  had  been  thus  provided  for  {h). 
[In  the  absence  of  such  a  provision,  though  not  because 
thereof,  a  Vermont  statute  requiring  a  new  promise,  in  order 
to  have  the  effect  of  taking  the  case  out  of  the  statute  of 
limitations,  to  be  in  writing,  was  held  not  to  be  retrospec- 
tive.'" On  the  other  hand,]an  Act  which  was  passed  in 
August,  but  not  to  come  into  operation  till  October,  made 
non-traders  liable  to  bankruptcy,  was  applied  to  a  person  who 
contracted  a  debt  and  committed  an  act  of  bankruptcy  be- 
tween those  dates.  It  was  considered  that  no  injustice  was 
done,  since  the  Act  had  told  him  what  would  be  the  conse- 


June,  1881,  requiring  certain  proof 
of  the  defeasible  character  of  deeds 
absolute  on  their  face,  "made 
after  the  passage  of  this  act,"  is  of 
course  inapplicable  to  instruments 
executed  before  the  act  :  Nicolls 
V.  McDonald,  101  Pa.  St.  514  ; 
Hartley's  App.,  103  Id.  23.] 

123  It  is  said  that  statutes  chang- 
ing the  rules  of  evidence  respecting 
past  transactions,  are  to  be  regarded 
as  affecting  the  remedy  only,  and 
not  as  impairing  the  obligation  of 
contracts :  Herbert  v.  Easton,  43 
Ala.  547.  And  it  is  .said,  in  Jour- 
neay  v.  Gibson,  5G  Pa.  St.  57,  GO, 
that  statutes  retrospectively  vali- 
dating defective  acknowledgments 
of  deeds  are  sustainable  only  be- 
cause supposed  to  operate,  not  upon 
the  deed,  or  contract,  changing  it, 
but  upon  the  mode  of  proc^f.  At 
all  events,  such  acts  have,  it  seems, 
been  pretty  uniformly  sustained: 
see  Journeay  v.  Gibson,  supra; 
Mercer  v.  Watson,  1  Watts  (Pa. 
330  ;  Tate  v.  Stooltzfoos,  IG  Serg. 
&  R.  (Pa.)  35  ;  Fogg  v.  Holcomb, 
64  Iowa,  621  ;  Dentzel  v.  Waldie, 
80  Cal.  138.      And  see  Purcell  v. 


Goshorn,  11  Ohio  St.  641,  wherean 
act  authorizing  courts  to  correct 
mistakes  in  deeds  of  married 
women  theretofore  or  thereafter 
made,  was  held  retrospective.  But 
see  McEwen  v.  Buckley's  Lessee, 
24  How.  243  ;  Ala.,  etc.,  Ins.  Co. 
V.  Boykin.  38  Ala.  510.  The 
decision  in  Koutsoug  v.  Wolf,  35 
jMo.  174,  also  to  the  contrarv,  was 
under  a  provision  of  the  constitu- 
tion forbidding  retrospective  legis- 
lation. In  Wright  v.  Graham,  42 
Ark.  140,  it  was  held  tiiat  an  act 
curing  defective  acknowledgments 
could  not,  in  the  Supreme  Court, 
be  applied  to  a  case  decided  below 
before  the  passage  of  the  act.  But 
in  Underwood  v.  Lilly,  10  Serg.  & 
R.  (Pa.)  97,  a  judgment  was  held 
cured  by  a  validating  act,  though 
a  writ  of  error  had  issued  before  its 
passage. 

{a)Fe)'  Cresswell,  J.,  in  Marsh  v. 
Higgins,  y  C.  B.  551,  1  L.  M.  &  P. 
263.     But  comp.  sup.,  §  282. 

(b)  Per  Park,  J..  6  Bing.  2G4. 

'-^  Richardson  v.  Cook,  37  Vt.. 
599. 


§  284:]  RETROACTION.  385 

qiicnce  of  contracting  tlie  dcl)t,  before  lie  contracted  it  (a). 
On  tliis  (ijround,  also,  it  was  held  that  the  11  &  12  Vict.  c.  43, 
s.  11,  which  limits  the  time  for  taking  summary  proceedings 
before  justices  to  six  months  from  the  time  when  the  matter 
complained  of  arose,  was  held  fatal  to  proceedings  begun 
after  the  passing  of  the  Act,  in  respect  of  a  matter  which 
had  arisen  more  than  six  months  before  it  was  passed  {!/)  ; 
though  the  interval  between  the  passing  of  the  Act  and  its- 
coming  into  operation  was  only  six  weeks.  If  the  act  had 
come  into  immediate  operation,  it  was  observed,  the  hard- 
ship would  have  been  so  great,  that  the  inference  might 
have  been  against  an  intention  to  give  it  a  retrospective 
operation  ;  but  the  ]irovision  suspending  its  operation,  for 
however  short  a  time,  was  to  be  taken  as  an  intimation  that 
the  Legislature  had  provided  it  as  the  period  within  which 
proceedings  respecting  antecedent  matters  might  be  taken  (c). 
[Upon  similar  reasons,  a  retroactive  eft'ect  was  given  to 
statutes  limiting  the  time  within  which  suits  might  be 
brought,'"  and  judgment  liens  enforced, '''°  where  ample  time 
was  left  for  the  bringing  of  suits  in  the  one  case,  and  the 
enforcement  of  existing  liens  in  the  other.'"  And]  in  the 
same  way  the  10th  section  of  the  Merchantile  Law  Amend- 
ment Act,  1856,  which  enacted  that  no  person  should  be  en- 
titled to  commence  an  action  after  the  time  limited,  by 
reason  of  his  being  abroad  or  in  prison,  was  held  to  apply  to 
causes  of  action  which  had  accrued  before  the  Act  was 
passed.  But  some  weight  was  due  to  the  circumstance  that 
another  section  of  the  saftie  Act  kept  alive  in  express  terms 
a  cause  of  action  already  accrued,  and  thus  afforded  the  in- 
ference that  no  such  intention  had  been  entertained,  as  none 
was  expressed,  as  regards  cases  under  the  iOth  section  {d). 
[And  when  it  is  said  that  courts  will,  in  the  construction  of 
statutes,    presume    against    an    intention    to    invade    vested 

(a)  Exp.  Rashleigli,  2  Ch.  D.  9  ;      346. 

comp.  Williams  v.  IlardinG:,  L.  R.  ^^^  Fiske  v.  Brisrgs,  6  R.  I.  557. 

1  H.  L.  9.     [See  ante.  §  273.]  i^s  Burwell  v.  Tullis.   12  Minn. 

(b)  R.  V.  Leeds  R.  Co.,  18  Q.  B.      572. 

34;J,  21  L.  J.  31.  C.  193.     See  per  I'^i  Comp.  ante,  §  279. 

Bovill,  C.  J  ,  in  Ings  v.  London  and  (d)  Cornhill  v.   Hudson,   8  E.  & 

S.  W.  R.  Co.,  L.  R.  4  C.  P.  19.  B.  429;  27  L.  J.  Q.  B.  8  ;  Panic  v. 

(c)  Per  Lord  Campbell,  18  Q.  B.  Bingiiam,  L.  R.  4  Ch.  735. 

25 


386  KETROACTION.  [§  285 

riglits,  a  distinction  is  to  be  drawn  between  the  rights  of 
private  citizens  and  rights  of  counties,  incorporated  towns 
and  cities, — public  corporations  created  by  the  Legislature 
for  political  purposes,  and  invested  with  political  powers 
to  be  exercised  for  the  public  good  in  tlie  administration 
of  civil  governnient, — in  fact,  instruments  of  the  govern- 
ment, subject  at  all  times  to  the  control  of  the  Legislature 
Avith  respect  to  their  dui-ation,  powers,  rights  and  prop- 
erty, and  to  the  inspection,  regulation,  control  and 
direction,  in  respect  of  its  funds  and  franchises,  of  the 
government  as  the  sole  trustee  of  tlie  public  interest.  As 
regards  such  corporations,  there  cannot,  in  any  proper  sense, 
be  any  question  of  an  invasion  of  vested  rights,  nor  any 
presumption  against  a  design  on  the  {)art  of  the  Legislature 
to  that  effect  which  could  materially  affect  the  construction 
of  a  statute,'^*  beyond  the  general  presumption  against  an 
intention  to  change  the  law  or  the  provisions  of  a  charter. 

[Moreover,  an  act  may  affect  the  vested  interests  of  one 
class  of  persons  and  not  those  of  another.  For  instance,  an 
act  authorizing  devisees  to  mortgage  devised  property  for 
the  purpose  of  paying  the  testator's  debts  may  bind  the  heirs 
and  devisees  who  applied  for  the  act,  but  cannot  affect  the 
rights  of  testator's  creditors.'"] 

§  285.  Acts  Relating  to  Procedure. — In  several  of  the  CaseS 
I'eferred  to  in  the  preceding  section  the  construction,  though 
fatal  to  the  enforcement  of  a  vested  right,  I)y  shortening  the 
time  for  enforcing  it,  did  not  in  terms  take  away  any  such 
right ;  and  they  would,  consequently,  appear  to  fall  within 
the  general  principle  that  the  presumption  against  a  retro- 
spective construction  has  no  application  to  enactments  which 
affect  only  the  procedure  and  practice  of  the  Courts  (a), 
even  where  the  alteration  which  the  statutes  make  has  been 
disadvantageous  to  one  of  the  parties.  Although  to  make  a 
law  for  punishing  that  wliich,  at  the  time  when  it  was  done, 
was  not  punishable,  is  contrary   to  sound   principle ;  a   law 

'28  See  Hagerstown  v.  Seliner,  37  '^^  Campbell's    Case,    2    Bland 

Md.    180  ;  Mocra  v.    Reading,    21      (Md.)  201). 

Pa.  St.  188.  {a)  Wright  v.  Hale,  6  II.  &  N. 

227  ;  30  L.  J.  Ex.  40. 


§  28G]  EETROACTION.  387 

which  merely  alters  the  procedure  may,  with  perfect  propri- 
ety, be  made  applicable  to  past  as  well  as  future  transac- 
tions {a);  and  no  secondary  meaning  is  to  be  sought  for  an 
enactment  of  such  a  kind.  No  person  has  a  vested  right  in 
any  course  of  procedure  (5),  [nor  in  the  power  of  delaying 
justice,""  or  of  deriving  benefit  from  technical  and  formal 
matters  of  pleading."*]  He  has  only  the  right  of  prose- 
cution or  defence  in  the  manner  prescribed,  for  the  time 
being,  by  or  for  the  Court  in  which  he  sues  ;  and  if  statute 
alters  that  mode  of  procedure,  he  has  no  other  right 
than  to  proceed  according  to  the  altered  mode  (c).  The 
remedy  does  not  alter  the  contract  or  the  tort ;  it  takes 
away  no  vested  right ;  for  the  defaulter  can  have  no  vested 
right  in  a  state  of  the  law  which  left  the  injured  party 
without,"^  or  with  only  a  defective,  remedy.  If  the  time 
for  pleading  were  shortened,  or  new  powers  of  amending 
were  given,  it  would  not  be  open  to  the  parties  to  gainsay 
such  a  change ;  the  only  right  thus  interfered  with  being 
that  of  delaying  or  defeating  justice ;  a  right  little  worthy 
of  respect  (d). 

§  286.  The  general  principle,  indeed,  seems  to  be  that 
alterations  in  the  procedure  are  always  retrospective,  unless 
there  be  some  good  reason  against  it  (<?).  Where,  for 
instance,  the  defendant  pleaded  to  an  action  for  a  small 
sum,  that  the  jurisdiction  of  the  Court  had  been  taken  away 
by  a  Court  of  Requests  Act,  and  that  Act  was  repealed 
after  the  plea   but  before  the  trial  ;  it  was  held   that   the 

(a)  Macaulay's    Hist.    Eng.   vol.  Warner  v.    Murdoch,    4    Ch.    D. 

iii.  715 ;  aud  vol.  v.  43.  752. 

{b)  Per  Mellish,  L.   J.,  in   Costa  '^'^  In   Turnpike  Co.  v.   Com'lh, 

Rica  V.    Erlauger.    3   Ch.    D.    69.  2  Watts  (Pa.)  433,  the  broad  prin- 

See  ex.    gr.  The  Dumfries  Swab,  ciple  is  asserted,  that,  wherever  a 

63,  aud  cases,  sup. ,  §  177  ;  [Berry  right  e.xists,  but  no  remedy  to  en- 

v.  Chiry,  77  Me.  482.]  force  it.  it  is  within  tlie  constitu- 

1*"  Penpte  V.    Tibbets,    4    Cow.  tioual  power  of  the  Legislature  to 

(N.Y.)  384, 392;  Hoffman  v.  Locke,  provide  one. 

19  Pa.  St.  57.  (d)  See  ex.  gr.  Cornish  v.  Hock- 

'31  Com'th  V.  Hall,  97  Mass.  570,  ing,  IE,  &  B.   602.  22  L.  J.   143 ; 

574.  Dash    v.  Van    Kleeck,    7"  Johns, 

(c)  See  the  judgments  of  Wilde,  (N.Y.)  503;  The  People  v.  Tibbets, 

B.,  in  Wright  v.  Hale,  30  L.  J.  Ex.  4  Cowen,  (N.  Y.)  392. 

40  ;  6  H.  &  N.  27 ;   and  of  Lord  (e)   See  per  Lord  Blackburn  in 

Wensleydale    in      Atty.-Genl.     v.  Gardner  v.  Lucas,  3  App.  603,  and 

Sillem,  10  H.  L.  704,  33  L.  J.  Ex.  Kimbray  v.  Draper,  L.  R.  3  Q.  B. 

227;    and   per    James,    L.    J.,   in  163. 


388  KKTKOACTION.  [§  28(> 

plaintiff  was  entitled  to  judgnient  {a).  When  the  Lei^isla- 
ture  i^ave  a  new  remedy  by  the  Admiralty  Aets  of  ISiO 
and  ISGl,  for  enforcing  rights  in  the  Admiralty,  those  Acts 
were  held  to  extend  to  rights  which  had  accrued  before  the 
new  remedy  had  been  provided  {h).  So,  the  provision  of  the 
Common  Law  Procedure  Act  of  1852,  s.  128,  that  the 
plaintiff  might  issue  execution  within  six  years  from  the 
recovei'y  of  a  judgment,  without  revival  of  the  judgment, 
was  held  to  apply  to  a  judgment  wliich  had  been  recov- 
ered more  than  a  year  and  a  day  before  the  Act  was  passed, 
and  which  therefore  could  not  have  been  put  in  force  under 
the  previous  state  of  the  law  without  revival  (c).  The 
enactment  6  &  Y  Yict.  c.  73,  s.  37,  which  made  attorneys' 
bills  taxable,  for  work  done  out  of  Court,  and  which  also 
provided  that,  fi"oni  the  passing  of  the  Act,  uo  attorney 
should  bring  an  action  for  costs  until  a  month  after  he  had 
delivered  his  bill,  was  held  to  apply  to  costs  incurred 
before  the  passing  of  the  Act  {(T).  On  this  principle, 
the  3  &  4  Will.  4,  c.  42,  s.  31,  which  provides  that  in 
actions  brought  by  executors,  the  plaintiff  shall  be  liable  for 
costs,  was  held  to  apply  to  an  action  begun  before  the  Act 
came  into  operation  (<?) ;  and  though  Littledale,  J.  {f),  and 
afterwards  Parke,  B.  ((/),  disapproved  of  the  decision,  it  ap- 
pears to  have  been  generally  concurred  in  by  the  Courts  {h). 
So,  the  Common  Law  Procedure  Act  of  1800,  which 
deprives  a  plaintiff,  in  an  action  for  a  wrong,  of  costs,  if  he 
recovers  by  vefdict  less  than  five  pounds,  unless  the  judge 
certifies  in  his  favor,  was  held  to  apply  to  actions  begun 
])efore  the  Act  had  come  into  operation,  but  tried  after  (i)', 

(a)  Warne  v.  Beresford,  2  M.  &  Exp.  Dawson,  L.  R.  19  Eq.  433. 

W.  848.     [See  ante,  g  278.]  (/)  1  A.  &  E.  341. 

{b)  The  Alexander  Larsen,  1  W.  (g)  In  Pinliorn  v.  Sonster,  8  Ex. 

Rob.    288.        See    The    Ironsides,  138,  21  L.  J.  337. 

Lnsh.  458;  31    L.   J.   P.  M.  &  A.  (h)  Per  Chnnnell.  B.,   in  Wright 

129.  V.  Hale,  30  L.  J.  Ex.  43  ;  per  Wood, 

(c)  Boodle  V.  Davis,   8  Ex.  351,  V.  C,  in  lie  Lord,  1  K.  &  J.  90,  24 

22  L.  J.  Ex.  69.  L.  J.  Cli.  145. 

(f/)Binns  v.   Ilev,  1  Dowl.  &  L.  (/)  Wright  v.   Ilalc,  6  II.  &    K 

66;    Brooks   v.    Bookelt,  9  Q.    B.  227,  30  L.    J.    Ex.    40.     [But  see 

847  ;  Scadding  v.  Eylcs,  Id.  858.  Atkins  v.  Pitcher,  31  linn   (N.  Y.) 

(e)  Freeman  v.  Moyes,  1  A.  &  E.  352,  where,  in  the  case  of  an  appeal 

338  ;   Pickup  v.  Wharton.  2  C.  &  by   a   defendant   from   a  justice's 

M.  405  ;  Grant  v.  Kemp,  Id.  63G  ;  judgment    to    the    county    court, 


§  287]  RETROACTION.  389 

and  a  similar  effect  was  given  to  the  Connty  Courts  Act  of 
1867,  as  regards  giving  security  for  costs  (a).  The  pro- 
vision wliich  extended  the  time  for  making  decrees  nisi 
absolute  from  three  to  six  months,  applied  to  suit  pending 
when  the  Act  came  into  operation  (h). 

§  287.  [In  this  country,  the  general  rule  seems  to  be,  in 
accordance  with  the  English,  that  statutes  pertaining  to  the 
remedy,  i.  e.,  such  as  relate  to  the  course  and  form  of  pro- 
ceedings for  the  enforcement  of  a  right,  but  do  not  affect 
the  substance  of  tlie  judguient  pronounced,'''  and  neither 
directly  nor  indirectly  destroy  all  remedy  whatever  for  the 
enforcement  of  the  right,"*  are  retrospective,  so  as  to  apply 
to  causes  of  action  subsisting  at  the  date  of  their  passage/" 
A  few  illustrations  will  serve  to  elucidate  the  application  of 
this  rule.  A  statute  giving  to  plaintiff  suing  for  purchase- 
. money  of  land  a  lien  thereon  in  the  vendee's  hands,  and 
authorizing  a  proceeding  in  rem  against  the  same  in  addition 
to  a  ])ersonal  judgment  against  the  defendant,  was  held  to 
apply  to  causes  of  action  existing  at  the  date  of  the  passage 
of  the  enactment  ;""  and  such  was  the  construction  of  an  act 
permitting  attachments  against  foreign  corporations  ;'"  of  an 
act  regulating  suits  against  sheriffs  ;"*  of  an  act  allowing 
mortgagors  and  mortgagees,  when  the  mortgaged  land  is 
taken  for  public  uses,   to  join    in   a  petition  for  damages.''* 

before    Sept.    1,    1880,    wheu    the  407 ;     Lawrence     R.    R.    Co.    v. 

existing  code  of  New  Yorli.  went  Maiioaing    Co.,    35    Ohio    St.    1  ; 

into  effecr,  it  was   hold    that   the  Bish.,    Wr.   L.,    §   84;   and  cases 

vcosts  were  regii'ated   by  tlie  old  infra. 

■code.     And  sec  Caldwell  v.  State,  '^"^  Excels.      Mahuf'g      Co.      v. 

•  55  Ala.  183,  ante,  ^  277.]  Kevser,     02     Miss.     155.      Comp. 

{a)  Kimbray  v.  Draper,  L.   R.  3  ante,  §  280. 

Q.  B.  160.     See  another  instance  '^'  Coosa  River  Steamb.  Co.  v. 

in  Wattou  v.  Watton,  L.  R.  1  P.  »fc  Barclay,  30  Ala.  120. 

M.  227.  '^**  CoUier  v.  Stale,  10  Ind.  58. 

(b)  Wattou   V.  Watton,  1  P.   «&  The  act.  in  this  case,  provided  that 

M.  227.  "all   rights  of  actions  secured  by 

1-"^  Morton  v.  Valentine,  15  La.  existing  laws  maj'   be   prosecuted 

An.  150.  in    the   manner   provided   in   this 

'3^  Richardson  v.  Cook,  37  Vt.  act,"    and    repealed    inconsistent 

599.  provisions. 

'33  See  Sampeyreac  V.  U.  S.,  7  Pet.  "9   Wood  v.    Westborough,  140 

222  ;    People    v.    Supervisors,    63  Mass.  403.  so  as  to  be  applicable  to 

Barb.  (N.  Y.)  85  ;   People  v.  Tib-  a  proceeding   begun  after  the  act 

bets.  4  Cow.  (N.  Y.)  384  ;  Matter  took  oifect,   though  the  laud  had 

of   Beams,   17   How.  Pr.  (N.    Y.)  been  previously  taken.     The  act  is 

459;   Dobbins   v.   Bank,    112    111.  said  to  be  remedial,  and  hence  the 

553;  Lane  v.  Nelson,  79  Pa.  St.  coustmction. 


390  RETKOACnON.  [§  2S7 

Upon  the  same  principle,  an  act  antliorizing  justices  of  the 
peace  to  issue  garnishee  process  was  lield  applicable  to  judg- 
ments rendered  before  its  enactment;'"  an  act  limiting  the 
amount  of  the  attorney-fee  to  be  taxed  upon  the  foreclosure 
of  school  fund  mortgages,  to  a  mortgage  previously  given  ;'" 
an  act  forbidding  a  party  who  received  money,  etc.,  as  a  con- 
sideration for  a  contract  made  on  Sunday  to  defend  an  action 
on  the  contract  on  that  ground  without  restoring  the  conside- 
ration ;'"  an  act  authorizing  assignees  of  notes  not  negotiable 
to  sue  thereon  in  their  own  names,  to  assignments  made  before 
its  passage  ;"'  a  provision  that  judgment  against  the  principal 
in  an  injunction  bond  shall  conclude  the  surety  also,  to  a  bond 
executed  before  the  act.'"  And  so,  an  act  dispensing,  in 
order  to  a  recovery  upon  an  ofiicial  bond,  with  the  necessity 
of  previously  establishinga  devastavit  against  the  princii)al,"' 
and  an  act  changing  the  mode  of  appi-aising  property  for 
sale  on  the  foreclosure  of  mortgages.'"  The  various 
statutes  authorizing  married  women  to  sue  alone  upon  con- 
tracts'" and  for  injuries  done  to  their  persons  or  characters, 
and  making  the  damages  recovered  their  separate  proj)erty, 
have  been  construed  to  embrace  causes  of  action  arising 
before  the  passage  of  the  act,  where  the  suit  was  not  com- 
menced until  after  the  same.'"  And  acts  extending  the 
period  of  limitation  for  certain  purposes,  and  waiving  condi- 
tions prescribetl  by  former  acts  in  regard  to,  e.  </.,  the  issuing 
of  executions,  have  been  permitted  a  retrospective  operation 
clearly  intended  by  them.'"  An  act  subjecting  lands  to  sale 
upon  execution  for  the  satisfaction  of  judgments  was  held  to- 

"0  Fisher  v.  Hcrvcy,  6  Col.  16.  '-"s  Ball    v.    Bullaid,    52    Barb. 

"'  Kossuth  Co.    V.   Wallace,  60  (N.  Y.)  141  ;  Losran  v.  Lo.^an,  77 

Iowa,  508.  Ind.    558;    Weldon    v.    Winslow, 

'42  Berry  v.  Clary,  77  Me.  482.  L.  R.  13  Q.  B.  D.  784  ;  Severance 

""  llai  Ian  V.  Sigler,  1  Morr.  (la.)  v.    Civil   Serv.    Supply    Ass'n,    48 

39  :  but  not  to  the  extent  of  cxclud-  L.  T.  N.  S.   485.     Comp.  contra  : 

ing  any  defence  that  miglit   have  Weldon  v.  Riviere,  53  L.  J.  Q.  B. 

been  made  in  suits  thereon  in  the  D.  448. 

names  of  the  payees  :  Ibid.  '-"^  See  llenchall  v.  Schmidtz,  50 

'"  Pickett    V.     Boyd,    11     Lei  ]\Io.    454;   Caperton  v.    Martin,  4 

(Tenn.)498.  W.    Va.    138;    such    acts     being 

"*  Winslow  V.    People,  117  III.  regarded  as  affecling  the  remedy 

152.  only  :  see  Slate  v.  Moore,  42  N.  J. 

'•"i  .Tones  v.  Davis,  6  Neb.  33.  L.  208  ;  Brewster  v.  JJi  ewstcr,  32 

'•»•' Buckingham  V.  Moss,  40  Com.  Barb.    (N.  Y.)  428.      Comp.  ante, 

461.  S  279. 


§  2S3]  RETROACTION.  391 

apply  to  judgments  obtained  upon  contracts  made  before  its 
passage."" 

§  288.  Effect  of  Acts  Relating  to  Procedure  only  on  Pending  Pro- 
ceedings.—[Indeed,  much  of  this  kind  of  legislation  is  held  to 
apply,  not  only  to  existing  causes  of  action,  but  also  to  pend- 
ing proceedings."*  It  is  said,  that  an  act  dealing  with  proced- 
ure only  applies,  unless  the  contrary  intention  is  expressed, 
to  all  actions  falling  within  its  terms,  whether  commenced 
before  or  after  the  enactment."''  Thus,  an  act  giving  appeals 
from  certain  enumerated  judgments  and  orders,  applies  to 
such  judgments  and  orders  made  j^rior  to  its  pas!:Hige  ;"'  as 
does  an  act  providing  for  the  granting  of  summary  relief,  by 
tlie  court  or  a  judge  at  chambers,  from  an  ordei-,  judgment, 
etc.,  of  the  court  in  certain  cases;"*  and  an  act  extending 
the  time  within  which  a  garnishee  in  a  justice's  court  may 
file  his  answer,"^  or  limiting,  by  way  of  amendment  to  a 
former  act  prescribing  no  period,  the  right  of  appeal  from 
township  boards  of  equalization  to  sixty  days  after  adjoin- 
ment,"°  or  imposing  additional  requirements  upon  parties 
applying  for  a  change  of  venue."'  So,  an  act  enlarging  the 
jurisdiction  of  the  United  States  Circuit  Court  was  held 
applicable  to  pending  causes."*  And  the  same  operation 
was  given  to  an  act  directing  that,  where  a  distributee  of  an 
intestate's  estate  is  unable  to  give  the  security  to  refund 
required  by  it,  the  fund  shall  be  put  at  interest  upon  secur- 

160  Reixidon  v.  Searcy,  2  Bibb  Fed.  Rep.  147  ;  Koch's  Est.,  5 
(Ky.)  203.  But  a  subsequeut  act  Rawle  (Pa.)  338.  See  also  Indian- 
restricting  the  operation  of  the  apolis  v.  Imberry,  17  Ind.  175. 
foiiner  one,  to  contracts  made  after  '^^  McNamara  v.  R.  R.  Co.,  13 
its  enactment  was  not  permitted  to  Minn.  388.  Compare,  however,  as 
affect  the  validity  ot  a  sale  of  land  to  prospective  operation  of  an 
upon  execution  on  a  judgment  actgiving  writ  of  error:  Kingsbury 
upon  a  contract  made  before  the  v.  Sperry,  119  111.  279,  and  post,  § 
passage    of  the  original  act,    but  290. 

before  the  enactment  of  the  restrict-  '^-i  Bensley  v.  Ellis,  39  Cul.  309. 

ino-  one.  '"  Willis  v.  Fincher,  68  Ga.  444. 

■'^'  See    Bish.,    Wr.    L.    §    84;  i«  gjocum  v.    Fayette  Co.,    61 

Comp.  ante,  §  283.     See  Denman  Iowa,  169.     See  ante,  §  272,   and 

V.    McGuire,    2    Centr.    Rep.    104,  post,  §  289. 

where    proceedings    begun    under  '"  Lee  v.  Bucldieit,  49  "Wis.  54. 

the  N.  Y.  Code  of   Remed.  Just.  The  new  law  took  effect  pending 

and  continued  under  the  Code  of  an  appeal  from  an  order  changing 

Procedure  were  held  valid.  the  venue. 

152  Singer  v.    Hassoii,  50  L.   T.  '^^  Larkin  v.  Saffarans,  15  Fed. 

N.  S.  326  ;  Larkin  v.  Saffarans,  15  Rep.  147.     See  ante,  §  271. 


392  RETROACTION.  [§§  289,  290 

ity  to  be  approved  by  the  Oi-phaiis'  Court;''"  to  acts  relating 
to  ainoiidinents  of  affidavits  and  certification  of  such  as  are 
taken  in  another  state;""'  to  a  statute  re<jjulatino-  t;\e  invest- 
ment of  the  proceeds  of  sale  under  judicial  decree,  the  sale 
being  niade  after,  under  a  decree  nuide  before,  the  ]iassage 
of  the  act ;'"'  and  to  acts  giving  the  Government  the  right 
of  })ereinptory  challenge  in  criminal  cases,'"  authorizing 
amendments  of  the  defendant's  name  in  indictments,'"  or 
changing  tlie  forms  of  procedure  for  the  trial  of  offences.'" 

§  289  [On  the  otlier  hand,  it  has  been  said  that  proceed- 
ings already  pending  at  the  time  of  the  enactment,  even  of 
statutes  merely  affecting  remedies,  are  to  be  deemed  exempt 
from  their  operation,  uidess  a  contrary  intent  appears  ;'" 
and  it  has  been  accordingly  held  that  a  statute  passed  after 
the  commencement  of  an  action,  changing  the  mode  of  pro 
cedure,  has  no  application  to  such  action  ;'*"  that  an  act  regu 
lating  the  matter  of  review  and  new  trials  did  not  take 
away  the  right  of  review  in  pending  actions,  or  where  judg- 
ment had  been  rendered,  but  the  time  limited  by  the  old 
law  for  review  had  not  expired  ;'"  that  an  act  regulating 
executions  did  not  apply  to  judgments  rendered  before  its 
passage  ;'°^  and  that  an  act  directing  that  in  all  indictments 
for  murder,  the  degree  of  the  crime  charged  shall  be  alleged 
was  not  to  be  construed  so  as  to  apply  to  pending  indict- 
ments to  which  the  defendant  had  not  yet  pleaded.'*"] 

§  290.  liimits  of  this  Rule. — But  the  new  procedure 
would  be  presumedly  inapplicable,  where  its  application 
would  prejudice  rights  established  under  the  old  (a);    or 

"'Koch's  Est.,   5  Rawle   (Pa.)  Foster  aud  Bingham,  JJ.,  dissent- 

338.  ing. 

ISO  Rosenthal  v.  Wehe,  58  Wis.  621 .  '"^  Stiles  v.  Murphy,  4  Ohio,  316. 

'61  Gill  V.  Wells,  59  Md.  492.  '«9  State  v.  Smith,  38  Conn.  397. 

>62   Walston    V.    Com'th,    16    B.  And    see    Mabry    v.    Baxter,     11 

Mon.  (Ky.)  15.  Ileisk.  (Tenn.)  682,  where  it  was 

163  State  V.  Manning,  14  Tex.  402.  held     that     an    act    giving    joint, 

'"  People  v.  Mortimer,  46  Cal.  defendants  the  riglit  to  sever,  and 

114.  oiu'  lo  have  a  change  of  venue  to 

165  Trist  V.  Cabenas,  18  Abb.  Pr.  the  county  of  his  residence,  could 

(N.  Y.)  143.  not  constitutionally  a|)p!\'  to  pend- 

'66  Merwin  v.  Ballard,  66  N.   C.  ing  causes,  as  being  judicial  and 

398.                          •  changing  the  remedy.     See  ante,  g 

'6'  Rowcll  V.  R.  R.  Co.,  .59  N.  II.  282. 

35.    Doe,    C.     J.,    duubliug,    and  (a)  Exp.     PhcEnix  Bessemer  Co., 

45  L.  J.  Ch.  11. 


§  290]  KKTKO ACTION.  393 

would  involve  a  bread  I  of  faith  hetweeu  the  parties.  For 
this  reason,  those  provisions  of  the  Conmion  Law  Proced- 
ure Act  of  1854,  s.  32,  which  permitted  error  to  be  brought 
on  a  judgment  upon  a  special  case,  and  gave  an  appeal  upon 
a  point  reserved  at  the  trial,  were  held  not  to  apply  where 
the  special  case  was  agreed  to,  and  the  point  was  reserved 
before  the  Act  came  into  operation  («).  Where  a  special 
demurrer  stood  for  argument  before  the  passing  of  the  first 
Common  Law  Procedure  Act,  it  was  held  that  the  judgment 
was  not  to  be  affected  by  that  Act,  which  abolished  special 
demurrers,  but  must  be  governed  by  the  earlier  law  (5). 
The  judgment  was,  in  strictness,  due  before  the  Act,  and 
the  delay  of  the  Court  ought  not  to  affect  it. 

[Where,  however,  a  right  has  been  only  partially  ac- 
quired under  a  statute,  and  remains  inchoate  at  the  time  of 
enactment  of  another,  changing  the  method  of  its  prosecu- 
tion and  perfection,  the  procedure  prescribed  for  that  pur- 
pose by  the  latter  must  be  pursued,  or  the  right  remain  un- 
perfected.""  Thus,  where  a  defendant's  real  estate  was  sold 
on  execution  in  August,  1829,  a  statute  then  giving  a  credit- 
or, who  had  a  judgment  which  was  a  lien  on  the  land,  fif- 
teen months  to  redeem,  upon  payment  of  the  amount  of  the 
bid,  and  ten  per  cent,  interest  thereon  ;  and  before  Novem- 
ber, 1830,  when  said  period  would,  under  the  law  in  force 
at  the  time  of  the  sale,  have  expired,  a  body  of  revised  stat- 
utes went  into  effect,  superseding  the  former  statute  upon 
this  subject,  and  requiring,  for  redemption  by  a  creditor, 
the  payment  of  the  bid  with  seven  per  cent,  interest,  but 
also  requiring  him  to  produce  to  the  sheriff  a  certified  copy 
of  the  docket  of  his  judgment ;  it  was  held  that,  whilst  the 
purchaser  remained  entitled  to  receive  the  amount  of  his 
bid  with  ten  per  cent,  interest,  his  right  thereto  having 
vested  in  him  before  the   revised   statutes  went   into   effect, 

(a)  Hngbes  v.  Lumley,  24  L.  J.  that  "  demurrers  for  formal  defects 

Q.  B.  29;  4E  &B.  274.     Vansittart  are  abolished,  and  those  ouly  for 

«."' Taylor,  4  E.   &  B.  910,  24  L.  J.  substau'.iul   defects   are    allowed," 

Q.  B.  198.     See  sup.  note  153.  was  held  to  abolish  .special,  but  to 

(5)  Pinbovu  V.  Soas'er,  21  L.  J.  preserve  ireneral  demurrers  :  Hobbs 

Ex.  306,  8  Ex.  138.  See  also  K.  v.  v.  R.  R.  Co.,  9  Hcisk.  (Teiin.)  873. 
Crowan,  14  Q.  B.  221;  Hobson  v.  ^""  People     v.     Liviugstoue,     6 

Neale,  8Ex.   131,  22  L.  J.  25,  179.  Wend.    (N.    Y.)    52G.     See   ante, 

[And  see  ante,  §  282.    A  provision,  §  281. 


394  KETKOACTION.  [§  291 

the  omission  of  the  creditor  to  produce  the  certificate  re- 
quii-cd  by  the  hitter  was  fatal  to  liis  claim  to  succeed  to  the 
rights  of  the  purchaser.'" 

§  291.   Curative  and  Declaratory  Laws.— [Ilowover  earnestly 
the  policy  of  all  retrospective  legislation  may,  upon  princi- 
ple, be  deprecated,  it  is  undoubtedly  true,  that,  "  our  legisla- 
tures are  constantly  passing  laws  of  a  retrospective  character. 
Such  are  the  laws  declaring  certain  acts  of  persons  irregularly 
elected,  valid;  correcting  assessment  rolls  irregularly  made; 
and  many  others  of  like  character.     These  laws  have  never 
been  questioned ;  and  the  denial  of  the  power  would,  in  a 
new  country,  where  forms  are  often  overlooked, lead  to  very 
serious  consequences."*"     It   cannot,  of  course,  be  the  pur- 
pose of  this  work,  to  examine  into  the  question  of  the  constitu- 
tionalityof  such  acts  in  general,  or  under  ])urticular  constitu- 
tional  provisions  affecting  special  legi^^lation,and  the  like  ;  nor 
to  inquire  whether  the  plea  of  infancy  which  has  been  put  for- 
ward in  so  many  instances  to  justify  deparlures  from  sound 
principles  of  economics  as  well  as  of  jurisprudence,  can,  at 
the  present  day,  be  entitled  to  respect,  at  least  in  those  states 
which  may  be  supposed  to  have  arrived  at  a  stage  of  civilized 
development   subjecting  their  institutions,  legislation  and 
policy  to  rules  and  criticisms  beyond  the  immunities  of  the 
pinafore.     It  is  a  proposition  too  well  settled  by  authority 
to  admit  of  dispute,  or  call  for  extended  discussion,  that  cur- 
ative acts,  especially  upon  matters  of  public  concern,  are  to- 
be  allowed  the  retroactive  effect  they  are  clearly  intended  to 
have,  even  though  vested  rights  and  decisions  of  courts  be 
set  aside  by  them,  so  long  as  they  do  not  undertake  to  infuse 
life  into  proceedings  utterly  void  for  want  of  jurisdiction,"' 
and  do  not  contravene  the  constitutional   provisions  against 
laws  impairing  the  obligation  of  contracts  and  ex  post  facto 
laws,  or  any  other  provision  of  the  particular  constitution  to 
which  the  Legislature  passing  them  may  be  subject."*     The 

'"  People  V.  Livingstone,  supra.  *  381-2  ;  Richards  v.  Rote,  68  Pa. 

1"  Sedj'w.,   p.  134,   citing  Syra-  St.  248  ;  Haldermau  v.  Young,  107 

cusc  City  B'li  v.    Davis,  IG  Barb.  Id.  3-34,  326.    But  see  Grim  v.  Sch. 

(N.     Y.)    188;    1    Kent,    Comm.,  Disir.,  57  Pa.  St.  433. 
•455.  11^  See  Oto«  Co.  v.  Baldwin,  111 

'"    See    Cooley,     Const.    Lim.,  U.  S.  1  ;  Underwood  v.  Lilly,  10 


§  292j  RETROACTION.  395 

purpose  of  these  sections  is  merely  to  point  out  the  effect, 
upon  the  construction  of  such,  and  acts  declaratory  of  former 
statutes  or  rules  of  law, of  the  presumption  against  an  intention, 
to  legislate  retrospectively,  and  possibly  of  a  constitutional  pro- 
hibition against  retrospective  operation  in  tlie  particular  class 
of  cases  to  which  the  act  is  to  be  applied,  coupled  with  the 
necessity  of  giving,  if  practicable,  a  lawful  and  reasonable  ope- 
ration to  the  expression  of  the  legislative  will. 

§  292.  [If  possible,  such  legislation  will  be  regarded  as 
intended  only  to  lay  down  a  rule  for  future  cases."^  Thus, 
a  resolution  of  the  Legislature  validating  the  acts  of  certain 
officers  performed  before  institution  of  a  suit  pending  at  the 
adoption  of  the  resolution,  was  held  not  to  be  available  in  it 
unless  a  purpose  which  would  make  it  so  was  expressed  in 
the  same."*  Statutes  declaring  the  act  of  a  notary  public, 
after  expiration  of  his  office,  valid,'"  and  that  tax  sales  shall 
not  be  set  aside  on  account  of  certain  defects  in  the  notice"* 
were  alike  held  applicable  to  future  cases  only.  An  act 
declaring  that  a  certain  notice  required  by  another  act  to  a 
city  of  a  defect  "  shall  not  be  deemed  invalid  "  because  of 
"  any  inaccuracy  [not  intended  to  mislead]  in  stating  the 
time,  place,  or  cause  of  the  injury,"  was  held  inapplicable 
to  a  notice  given  before,  though  controlling  in  the  case  of 
notices  given  after,  the  enactment.'"  So,  it  was  held  that  a 
legislative  declaration  that  the  provisions  of  an  earlier  act 
"authorizing  a  married  woman  to  carry  on  any  trade  or 
business  on  her  sole  and  separate  account,  shall  be  so  con- 
strued as  not  to  allow  her  to  enter  into  co-partnership  in 
business  with  any  person,"  in  legal  effect  declared,  that, 
thereafter,  no  married  woman  should  have  that  right  or 
power.'*"     So,  an  act  declaring  that  a  previous  act  should  not 

Serg.   &  R.   (Pa.)  97;   Com'th  v.  S..  etc.,  Agency.  74  Mo.  457. 

Marshall,  69  Pa.  St.  838;  Lane  v.  '•'s  Linn    v.     Scott,    3  Tex.    67. 

Nelson,    79  Id.   407  ;   Spinniiis  v.  '"  Beruier  v.  Becker,  37  Ohio  St. 

Build'ir,    etc.,    Ass'u,  26   Ohio"  St.  72. 

483;  King  tJ.   Course,  25  Ind.  202;  I's  Citizens  '   Gas    Light    Co.    v. 

Sedgwick,   pp.  141-144,    and  note  Slate,  44  N.  .J.  L.  648. 

Oiiratiw  Statutes.      See  also  ante,  '"'*  Shallow   v.  Salem,  136  Mass. 

§  284,  note  123.  136.      And  see  Forster  v.  Forster, 

"5  See   Journeay   v.    Gibson,    56  129  Td.  559. 

Pa.    St.   57.    61.      Lamberlson    v.  '»"  Todd    v.    (.Mapp,    118    Mass.. 

Hogan,  2  Id.  22  ;  McNichol   v.   U.  495. 


396  '  RETROACTION.  [§  293 

be  construed  as  increasing  the  emoluments  of  certain  officers 
"at  the  date  of  its  passage.'""  And  an  act  regulating  the 
construction  of  certain  douhttiil  expressions  in  wills,  was 
held  not  to  aid  the  construction  ol'  one  taking  effect  before 
theenactinent.'"  And  this  rule  denying  such  statutes  a  retro- 
spective, and  restricting  them  to  a  prospective,  operation  is 
especially,  it  is  said  always,"'  to  be  observed,  where  the 
declaratory  act  undertakes  to  put  a  construction  upon  another 
act  which  has  already  received  a  different  judicial  construc- 
tion.'" Hence,  an  act  legalizing  a  tax  roll,  and  curing  its 
defects,  was  construed  as  not  affecting  an  existing  judgment 
for  trespass  against  officers  for  seizing  and  selling  property  to 
pay  a  tax  thereunder  ;"''  nor  an  act  legalizing  an  assessment, 
assessment  roll  and  delinquent  list,  a  judgment  declaring  the 
levy  invalid.""  And  an  act  autlioriziiig  a  corporation  to  do  a 
thing  it  had  already  done,  and  validating  the  same,  was  held 
prospective  only,  and  not  affecting  the  rights  of  a  plaintiff 
in  litigation  at  the  passage  of  the  act.'" 

§  293.  [But,  where  such  a  construction  is  impossible, 
where  the  "  language  is  plainly  retrospective,""^  whilst  it 
must  be  given  the  effect  it  clearly  is  intended  to  have,  it  is  not 
to  be  extended  beyond  the  plain  intent  of  the  Legislature."" 
Thus,  an  act  undertaking  to  validate  a  void  assessment  on  a 
city  lot  for  a  street  improvement  was  held,  at  ail  events,  not 

"»  Bassett  v.  U.  S.  2  Ct.   of  CI.  where,  ou  ]\Iarc;h  4,  1865,  a  final 

448.     And  see  LesBoisv.  BramcU,  judgment      had      been      obtained 

4  How.   449,   for  siniihir  construe-  enjoining  county  officers  from  issu- 

tion   of  an   act   validating  certain  ing  warrants  to  pay  an  unaulhor- 

titles.  '7A'd  appropriation  made  by  them  ; 

'82  James   v.    Rowland,    52    i\Id.  an  act  legalizing  the  approi)rialion 

462.      See  ante,  i;  274.      But  com-  having  been    jiassed   on   iMareli  i], 

pare  Adams  v.  C'hapiin,  1  Hill,  Ch.  ISO,"),  \o  take  eifert   from  and  after 

(S.  C.)  265,  where  an  act  declaiing  its  passage  ;ind  publicalion  in  cer- 

that  no  words  of  inheritance  shall  tain  newspapers,  which  publicalion 

be   neeessarv  to  convey   a   fee  by  was     made    on    ]\Iareh    4,    1865, 

devise,    operated    retrospectively;  it  was  held  that  the  legalizing  stat- 

and  ante,  §  284.  ute   went  beyond    the    judgment, 

163  Lambertson  V.  Hogan,  2  Pa.  validated    the     appropriation     ab 

St.  22.  initio,  and  rendered   the  judgment 

"*^  See  Ibid. ;  Knpfcrt  v.  Build'g  erroneous.     Comp.   Keis  v.  GralT, 

Ass'n,  ;]0  Pa.  St.   465  ;  Lincoln  B.  51  Cal.  86,  post,  t^  293. 

&  S.  Ass'n  V.  Giaham,  7  Neb.  173.  ''>'  Cunningham's  App.,  108  Pa. 

i«  Moser  v.  White,  29  Mich.  59.  St.  546. 

'86  People  V.  Moore,  1  Itlaho  N.  '^^  Journeay  v.  Gibson,    56  Pa. 

S.  662.     But  see  ante,  i^  284,  note,  St.  57,  61. 

and  King  v.  Course,  25  Ind.  202,  '«»  Ibid.,  at  p.  60. 


§  294]  RETROACTION.  397 

to  validate  the  same,  by  relation,  as  of  the  date  when  it  was 
made,  but  only  at  the  date  of  the  passage  of  the  act.""  Yet. 
in  so  far  as  such  statutes  are  remedial,  they  are  to  be  con- 
strued as  remedial  statutes  are ;""  so  that  an  act  which  vali- 
dated acknow^ledgments  of  deeds  made  before  officers  of 
other  states,  was  held  to  embrace  such  an  acknowledgment  of 
a  mortgage.'''^ 

§  294.  Amendments.— [It  was  declared  in  England  that  an 
act  of  Parliament  made  to  correct  an  error  of  omission 
committed  in  a  former  statute  of  the  same  session,  relates 
back  to  the  time  when  the  first  act  was  passed,  and  the  two 
must  be  taken  together  as  though  they  were  one  and  the 
same  act,  the  first  being  read  as  containing  in  itself,  in 
words,  the  amendment  supplied  by  the  last ;  so  that  goods 
exported  before  the  second  law  passed,  but  only  sldpped  on 
hoard  before  the  first,  of  which  the  second  was  an  amend- 
ment, was  enacted,  where  liable  to  the  duties  imposed  upon 
the  exportation  of  goods."'  This  result  would  seem  to  fiow 
logically  from  the  theory  formerly  accepted  that  every 
statute  commenced  from  the  beginning  of  the  session  at 
which  it  was  enacted,"*  and  there  is,  therefore,  nothing  in 
it  which  would  seem  to  give  amendments,  as  such,  a 
retroactive  operation.  And  such  is  certainly  not  the  proper 
understanding."'  JSTo  doubt,  a  statute  which  is  amended  is 
thereafter,  and  as  to  all  acts  subsequently  done,  to  be  con- 
strued as  if  the  amendments  had  ahvaj^s  been  there,""  and 
the  amendment  itself  so  thoroughly  becomes  a  part  of  the 
original  statute,  that  it  must  be  construed  in  view  of  the 
original   statute    as   it   stands    after   the     amendments   are 

-      190  Reis   V.    Graflf,    51    Cal.    86.  Dak.  308.      And  sec  Ludington  v. 

Comp.    King  v.    Course,   25   Ind.  U.  S.,  15  Ct.  of  CI.  453,  where  the 

203,  ante.  §  293,  note.  act  of  1875,  to  correct  errors  and 

"' Journeay     v.      Gibson,     ubi  supply  omissions  in  the  Rev.  Stat., 

supra.  amendini?  the  same  by  adding  cer- 

I'J-  Ibid.  tain  provisions  was  held  construa- 

""  Atty.-Genl.  v.  Pougett,2Price,  ble,  not  as  a  new  enactment,  but  as 

381.  in  Potter's  Dwarris,  p.  172.  if  tlie  Rev.  Statutes  had  been  origi- 

'5^  See  post,  ^  497.  nall^'  adopted  with  the  alterations 

135  See  Bish'.,'  Wr.  L.,  §  153a.  thus  made  incorporated  in  them  in 

15'^  Ilolbrook'  V.    Nichol,    36   111.  their  proper  places,  and  that  they 

161;  Turuey  v.   Wilton,  Id.   385;  were  all  subject  to  the  provisions 

Kamerick   v.    Castleman,   31   Mo.  of  §§  5595  and  5601  of  the  Rev.. 

App.  587  ;  People  v.  Sweetser,  1  Stat. 


398  RKTROACTION.  [§   294 

introduced,  and  the  nuitters  superseded  by  the  amendments 
eliminated.'"  Hence,  where  certain  amendments  to  an  act 
gave  justices  of  the  peace  concurrent  jurisdiction  with  the 
common  pleas  "  under  the  restrictions  and  limitations  herein 
provided,"  this  was  lield  to  refer  to  the  restrictions  and 
limitations  provided  in  the  original  act  as  it  stood  after  all 
the  amendments  made  thereto  were  introduced  into  the  same, 
in  their  proper  places.'"*  But  even  where  the  amendment 
merges  portions  of  the  original  act  in  the  new  provisions,'" 
so  that,  from  the  time  of  the  amendment,  the  whole  force 
of  the  enactment  as  to  transactions  subsequent  to  it  rests  upon 
it,  the  old  act  retaining  no  vitality  distinct  from  the  new 
one,  it  may  yet  be  referred  to  as  controlling  past  trans- 
actions;"°''  and  even  an  amendment  of  an  act  "  so  as  to  read" 
in  a  prescribed  way  has  no  retroactive  force,  but  is  to  be 
understood  as  enacted  when  the  amendment  takes  effect."" 
So,  too,  an  amendment  of  a  former  law,  the  amendment 
declaring  valid  certain  acknowledgments  or  probates  of 
deeds,  defective  under  the  original  act,  was  held  not  to  be 
retroactive,  so  as  to  validate  an  acknowledgment,  etc.,  defec- 
tively made  under  the  latter  before  the  passage  of  the 
amendment."' 

"'  See    McKibben   v.    Lester,    6  the  provision  amended  :  see  ante, 

Ohio  St.  637;  People  v.  Sweetser,  §  19G  ;  and  tliat.  in   (his  respect  it 

supra.  was  immaterial  whether  the  Legis- 

'''^  Ibid.     And    see,    for  similar  lature   incorporated    the   old    law 

constructions,  ante,  ^  196.  and  the   amendment  into  one  sec- 

'"'  See  ante,  §  195-196.  tion,  or  in  terms  declared  the  pro- 

-"<'  People    V.    Superv'rs,    Mont-  vision    added    an    amendment    or 

gomery,  67  N.  Y.    109  ;  Moore  v.  addition,  it  was  lield,  that,  in  this 

iVIausert,   49  Id.  d-)2  ;  Goodno  v.  particular    case,    the    amendment, 

Oshkosli,  olWis.  127.  upon  all  the  grounds  of  construc- 

•201  Ely  V.  Holton,  15  N.  Y.  595  ;  tion,  was  to  be  deemed  as  evincing 

Bay  V.  Gage,  36  Barb.  (N.  Y.)  447;  a  design  to  operate  retroactively. 
Kelsey  v.  Kendall,  48  Vt.  24  ;  Kam-  ^o^  McEwen  v.  Bnlklcy's  Lessee, 

ericlc  v.  Castleman,  supra.  See  Bur-  24  How.  243.     The  court  held  the 

well  V.  Tullis,  13  Minn.  573,  where,  effect  of    the    amendment    to    be 

besides     being    decided    that    an  merely   to   provide  an    additional 

amendment  "so  as  to  read"  was  mode  of  probate;   "nor  does  the 

not  a  repeal  and  re-enactment  of  act  go  any  further  :"  Ibid.,  p.  244. 


§  295]  MODIFICATION  OF  LAJ^GUAGE.  399 


CHAPTER    XL 

Exceptional    Construction    to    Effectuate    Legislative 

Intent. 

§  295.  Effect  lo  be  given  to  True  Intent  of  Act.       Modification  of 

Language. 
§  297.  Acts  done  "under,"  "  by  virtue  of,"  "in  pursuance  of,"   etc., 

statute. 
§  298.  Interpolation  of  Words,  etc. 
§  301.  Elimination  of  Words,  etc. 
§  303.  "Or "read  "and." 
§  304.  "And "read  "or." 

§  305.  Limits  of  Interchangeableness  of  "  and"  and  "or." 
§  306.  Permissive  Words  when,  and  when  not,  Read  as  Imperative. 
§  315.  Effect  of  Express  Reference  to  Discretion. 
§  317.  Correction  of  Omissions  and  Erroneous  Insertions. 
§  318.  EUiplical  Sentences.     Transposition  of  Words,  etc. 
§  319.  Clerical  Errors. 

§  320.  Equitable,  in  the  sense  of  Liberal,  Construction. 
§  322.  Equitable  Construction  in  its  Strict  Sense. 
§  323.  Reason  for  such  Construction  in  Ancient  Statutes. 
§  324.  Equitable  Restriction  of  Modern  Statutes. 
§  325.  Principle  of  Equital)le  Construction  Discredited. 
§  326.  When  Established  Equitable  Construction  of  One  Statute  Applied 

to  Another. 
§  327.  Adoption  of  Principle  from  Analogy  to  Statute 
§  328.  Acts  Contrary  to  Natural  Equity,  etc. 

§  295.  Effect  to  be  Given  to  True  Intent  of  Act.  Modification  of 
Language.— Where  the  language  of  a  statute,  in  its  ordinary 
meaning  and  grammatical  construction,  leads  to  a  manifest 
contradiction  of  the  apparent  purpose  of  the  enactn^ent,  or  to 
some  inconvenience  or  absurdity,  hardship  or  injustice,  pre- 
sumably not  intended,  a  construction  may  be  put  upon  it, 
which  modifies  the  meaning  of  the  words,  and  even  the  struc- 
ture of  the  sentence  {a).    This  is  done,  sometimes,  by  giving 

(a)  See  per  Alderson,  B. ,  in  Atty-  Wright  v.  Williams,  1  M,  &  W. 

Genl.   V.  Lockwood,  9  M.   &   W.  99  ;  and  llollingworth  v.  Palmer. 

398,  and  Miller  v.  Salomons,  7  Ex.  4  Ex.  2G7;  j^e?- James,  L.  J.,  in  Exp. 

475.  21  L.  J.  188  ;  per  Parke,  B.,  Rashleigh,  2  App.  13  ;  Grot,  dc  B. 

in  Becke  v.  Smith,  2  M.  &  W.  195  ;  &  P.,  b.  2,  c.  16,  8.   12  (4).     [But 


400 


MODIFICATION  OF  LANGUAGE. 


[§295 


an  unusual  meaninc^to  particular  words  ;  sometimes  b}"  alter- 
ing their  collocation  ;  or  bv  rejecting  them  altogether;  or  by 
interpolating  other  words ;  under  the  influence,  no  doubt,  of 
an  irresistible  conviction,  that  the  Legislature  could  not  possi- 
blj'  have  intended  what  its  words  signify,  and  that  the 
modifications  thus  made  are  mere  corrections  of  careless 
language,  and  really  give  the  true  intention.  [The  ascertain- 
ment of  the  latter  is  the  cardinal  rule,  or  rather  the  end  and 
object,  of  all  construction  ;'  and  where  the  real  design  of  the 
Legislature  in  ordaining  a  statute,  although  it  be  not 
precisely  expressed,"  is  yet  plainly  perceivable,  or  ascertained 
with  reasonable  certainty,  the  language  of  the  statute  must 
be  given  such  a  construction  as  will  c:irry  that  design  into 
effect,"  even  though,  in  so  doing,  the  exact  letter  of  the  law 
be  sacrificed,"  or  though  the  construction  be,  indeed,  contrary 
to  the  letter.^     And  this  rule  holds  good  even  in  the  con- 


in  all  these  matters,  it  is  necessary 
to  remember,  that,  in  the  interpre- 
tation of  a  statute,  the  court  must 
look  to  its  language:  State  v. 
Duggan  (R.  I.),  3^New  Engl.  IJep. 
137  ;  that  the  words  of  a  law  are 
generally  to  have  a  controlling 
effect  upon  its  construclion  : 
Siemens  v.  Sellers,  123  U.  S.  276, 
285  (although  "  the  interpretation 
of  those  words  is  often  to  be  sought 
from  the  surrounding  circum- 
stances and  preceding  history  :" 
Ibid.,  per  Bradley,  J.,  construing 
the  phrase  "  17  years  from  the  date 
of  issue,"  in  the  act  of  Congress, 
relating  to  patents,  of  2  jMarch, 
1861);  and  that,  in  giving  construc- 
tion to  an  act,  in  all  ordinary  cases, 
"courts  arc  confined  to  the  lan- 
guage and  terms  employed  by  the 
Legislature,  and  are  not  at  liberty 
to  interpolate  phrases  and  provis- 
ions, altliough  otherwise  the  pur- 
pose and  intention  of  the  law- 
making power  may  seem  indefi- 
nite, obscure  and  incomplete  :" 
Furey  v.  Gravesend,  104  N.  Y. 
405  ;  6  Centr.  Rep.  501,  503.] 

1  People  V.  Weston,  3  Neb.  312  ; 
Hunt  V.  R.  R.  Co.,  (lud.)  11 
West.  Rep.  107. 

2  State  V.  King,  44  Mo.  283. 

^  Brown  v.  Barry,  3  Dal.  365  ; 
Minor  v.  Mich.   Bank,  1  Pet.  46  ; 


Binney  v.  Canal  Co.,  8  Id.  201. 

■I  Tonnele  v.  Hall,  4  N.  Y.  140  ; 
Kennedy  v.  Kennedy,  2  Ala.  571  ; 
Thompson  v.  Stale,  20  Id.  54 ; 
Sprowl  V.  Lawrence,  33  Id.  674  ; 
Big  Black  Creek,  etc.,  Co.  v. 
Com'tii,  94  Pa.  St.  450  ;  Smith  v. 
RandtUl,  6  Cal.  47  ;  E.xp.  Ellis,  11 
Id.  222  ;  People  v.  Dana,  22  Id. 
11  ;  State  v.  Poydras,  9  La.  An. 
105  ;  Simonds  v.  Powx'rs,  28  Vt. 
354;  State  v.  King,  41  Mo.  283; 
Allen  V.  Parish.  3  Ohio,  198  ;  Keith 
V.  Quinney,  1  Oreg.  364 ;  Rey- 
nolds V.  Holland,  35  Ark.  56.  So, 
"the  exact  and  literal  wording  of 
an  Act  may  sometimes  be  rejected, 
if,  upon  a  survey  of  the  whole  Act 
and  the  purpose  to  be  accom- 
plished, or  tlie  wrong  to  be  reme- 
died, it  is  plain  tliat  such  exact  or 
literal  rendering  of  the  words 
would  not  carrj-  out  the  legislative 
intent :"  Bell  v.  New  York,  105 
N.  Y.  139  ;  7  Centr.  Rep.  200.  268^ 
and  in  the  ascertainment  of  such 
purpose,  the  title  may  be  regarded: 
Ibid. 

*  People  V.  Utica  Ins.  Co.,  15 
Johns.  (N.  Y.)  358  ;  Jackson  v. 
Collins,  3  Cow.  (N.  Y.)  89  ;  Tonnele 
V.  Hall,  4  N.  Y.  140 ;  Staniels  v. 
Raymond,  4  Cush.  (Mass.)  314; 
Ingraham  v.  Speed,  30  Miss.  410  ; 
New  Orl.,  etc.,  R.  R.  Co.  v.  Hemp- 


§  296]  MODIFICATION  OF  LANGUAGE.  40l 

struction  of  criminal  statutes,"  Of  course,  if  the  meaning  of 
the  Legishiture  is  clear,  every  techincal  rule  of  construction' 
must  yield,'  and  though  the  words  used  to  express  that 
meaning  be  not  apt  for  the  purpose,  they  will  be  so  con- 
strued as  to  serve  (ho  same.*  And,  a  fortiori,  if  there  is  au- 
express  declaration  of  the  intent  and  meaning  of  a  statute  by 
a  provision  in  the  same  to  carry  out  that  intent,  all  othei" 
parts  of  the  act  are  controlled  in  construction  by  it.'  A 
clause,  doubtful  upon  its  grammatical  construction,  will  be 
controlled  by  the  general  intent  of  the  Legislature,  rather 
than  by  the  literal  meaning  of  the  language.'"] 

§  296.  In  a  case  already  mentioned  (a),  where  a  colonial 
ordinance,  passed  to  give  effect  to  the  treaty  between  this 
country  and  China,  authorized  the  extradition  to  the  Chinese 
government  of  any  of  its  subjects  charged  with  havinof  com- 
mitted "  any  crime  or  offence  against  the  laws  of  China," 
the  Privy  Council  construed  these  words  as  limited  to  those 
crimes  and  offences  which  are  punishable  by  the  laws  of  all 
civilized  nations;  and  as  not  including  acts,  which  though 
"against  the  laws  of  China,"  would  be  innocent  in  Europe 
{h).  When  it  was  settled  that  the  Statute  of  Limitations,  21 
Jac.  1,  c.  16,  applied  to  India  (c),  it  was  necessary  to  construe, 
for  that  purpose,  the  expression  "beyond  the  seas,"  as  mean- 
lull,  35  Id.  17  ;  Brown  v.  Wright,  '"  George  v.  B'd  of  Education 
13  N.  J.  Eq.  240  ;  Big  Black  Creek,  'SS  Ga.  344. 
etc.,  Co.  V.  Com'Lb,  94  Pa.  St.  450;  (a)  Ante,  §  29. 
Coni'th  V.  Navigation  Co.,  GG  Id.  (6)  Attj^-Genl.  v.  Kwok  Ah 
81  ;  Com'lh  v.  Fiaim,  16  Id.  lG:j  ;  Sing,  L.  K.  5  P.  C.  197.  As  the 
Bathurst  v.  Course,  3  La.  An.  200;  literal  meaning  of  the  words  was 
Coni'l  B"k  V  Foster,  5  Id.  516;  wide  enougli  to  iuclude  political 
Kyegate  V.  Wardsboro,  30  Vt.  746;  offences  agaiust  the  law  of  a 
Canal  Co.  V.  R.  R.  Co.,  4  Gill  &  J.  foreign  State,  an  English  Court 
(Md.)  1  ;  Beall  v.  Ilarwood,  2  Har.  might  feel  bound  to  think  it  inipos- 
&  J.  (Md.)  167  ;  Riddick  V.  Gover-  sible  that  they  could  have  been 
nor,  1  Mo.  147  ;  Erwin  v.  Moore,  used  in  that  sense.  But  it  might 
15  Ga.  3G1  ;  State  v.  R.  R.  Co.,  2  be  doubted  whether  the  other 
Sneed  (Tenn.)  88.  .                                 party  to  the  treaty  understood  our 

fi  Diiniels  v.  Com'th,  7  Pa.  St.  stipulation  in  tiie  same  narrow 
371,373.  sense;  or,   indeed,  whetlier  it  did 

'  Gates  V.  Xat'l  B'k,  100  U.  S.  not  understand  it  as  including, 
239;  Wilkinson  v.  Leland,  2  Pet.  aboveallotheis.  those  crimes  which 
627.  all  governments  are  most  desirous 

*  Crocker  v.  Crane,  21  Wend,  to  punish,  viz.,  those  against  them- 
(N.  Y.)  211.  selves.    The  same  wide  expressions 

8  Farmers'  B'k  v.  Hale,  59  N.  Y.  are  used  in  the  34  Vict.  c.  8,  and 
53.  in  the  37  &  38  Vict.  c.  38. 

(c)  E.  I.  Co.  V.  Paul,  7  Moo.  85.. 


402  >[(.I)IFICATI<>N   OF   r.AXcU'AGi:.  ;  §  -'^'* 

iIl^•  out  of  tlie  territories  [jt).  Tlu;  suiiic  Statute,  which,  after 
liinitiiis^  the  time  for  suing,  guve  a  further  period  to  persons 
abroiid  "after  they  returned,"  was  construed  as  giving  that 
extended  time  to  the  executor  of  a  person  who  never  re- 
turned, but  died  abroad  {h).  An  Act  which  made  it  penal 
"  to  be  in  possession  of  game  after  the  last  day  "  allowed  for 
shooting,  would,  if  construed  literally,  include  cases  where 
the  possession  had  begun  before  the  last  day,  and  therefore 
hiwfully  ;  and  to  avoid  this  injustice,  it  was  construed  as  ap- 
plying only  where  the  possession  did  not  begin  until  after  the 
close  of  the  season  ;  that  is,  tlie  words  "to  begin"  were  inter- 
polated before  "to  be  in  possession  "  (c).  Where  one  section 
enacted  that  if  the  plaintiff  recovered  a  sum  "  not  exceeding" 
five  pounds  he  should  have  no  costs,  and  another,  that  if  lie 
recovered  "  less  than  "  five  pounds,  and  the  Judge  certified,  he 
should  have  his  costs ;  the  literal  meaning  of  the  last  chiuse 
leavin'*-  it  inoperative  where  the  sum  recovered  was  exactly 
five  pounds,  it  was  held,  to  avoid  im))uting  so  incongruous 
and  improbable  an  intention  to  the  Legislature,  that  the  words 
"less  than  "  should  be  read  as  equivalent  to  "  not  exceed- 
ing" (d).  The  Insolvent  Act,  which  invalidated  voluntary 
conveyances  made  by  insolvents  "  within  three  months  be- 
fore the  comiriencement  of  the  imprisonment,"  which, 
literally,  wouUl  exclude  the  time  of  imprisonment,  was 
construed  as  if  the  words  had  been  "  within  a  period 
commencing  three  months  before  the  imprisonment."  The 
literal  construction,  in  leaving  uninvalichited  voluntary 
conveyances  made  after  tlie  imprisonment  had  begun,  would 
have  led  to  an  incongruity  which  the  Legishiturc  couKl  not 
be  supposed  to  have  intended  (e).  The  Ixinkruptcy  Act  of 
I8G9,  providing  tliat  all  the  property  acquired  by  the  bank- 
rupt "during  the  continuance"  of  the  bankruptcy  should  be 
divisible  among  his  creditors,  and    })roviding  also  that    he 

(a)  Ituckniiiboye  v.  Lullooboy,  8  (c)  2  (Jeo.  3,  c.  19,  :J9  Geo.  3,  c. 

^loo.  4.      [See  ante,  §  78,  as  to  the  34 ;  Simpson  v.  Unwiii,  3  B.  &  Ad. 

<;()nslriiction  of  this  phrase  by  the  134. 

various    courts      in     the      L'liited  ((/)  Garby   v.    Harris,  7  E.\'.  591, 

States.]  21  L.  .J.  IGO. 

{!))  Townsend   v.  Deacon,  3    Ex.  (e)  Bccke  v.  Smith,  2  M.   &  W. 

707  ;   and   see  Forbes  v.  Smith,  11  198. 
Ex.  161. 


§  2^7]  MODIFICATION  OF  LANGUAGE.  403 

might  obtiiiii  his  discharge  not  only  at  the  close,  but  during 
the  continuance  of  his  bankruptcy,  it  was  held  that  the  earlier 
passage  must  be  read  in  substance  as  meaning  that  the  future 
property  which  was  to  be  divisible,  was  that  acquired  either 
during  the  continuance  of  the  bankruptcy  or  before  the 
earlier  discharge  of  the  bankrupt.  This  construction  was 
deemed  necessary  to  avoid  leaving  the  bankrupt  incapable  of 
acquiring  property  after  he  had  given  up  everything  to  his 
creditors,  simply  because  the  property  had  not  been  realized, 
and  consequently  the  bankruptcy  not  closed  {a). 

§  297.  Acts  done  "  under,"  "  by  virtue  of,"  "in  pursuance  of," 
etc.,  statutes. — It  is  obvious  that  the  provisions  in  numerous 
statutes  which  limit  the  time  and  regulate  the  procedure 
for  legal  proceedings  for  acts  done  ''  under  "  or  "•  by  virtue," 
or  "in  pursuance"  of  their  authority,  do  not  mean  v.hat 
the  words,  in  their  plain  and  unequivocal  sense,  convey  ; 
since  an  act  done  in  accordance  with  law  is  not  actionable, 
and  therefore  needs  no  special  statutory  protection  (5). 
Such  provisions  are  obviously  intended  to  protect,  under 
certain  circumstances,  acts  which  are  not  legal  or  justifi- 
able (c);  and  the  meaning  given  to  them  by  a  great  number 
of  decisions  seems,  in  the  result,  to  be  that  they  give  pro- 
tection in  all  cases  where  the  defendant  did,  or  neglected  {d) 
what  is  complained  of,  under  color  of  the  statute  ;  that  is, 
being  within  the  general  purview  of  it,  and  with  the  honest 
intention  of  acting  as  it  authorized,  though  he  might  be 
ignorant  of  the  existence  of  the  Act ;  and  actually,  whether 
reasonably  or  not,  believing  in  the  existence  of  such  facts  or 
state  of  things  as  would,  if  really  existing,  have  justified  his 
conduct  {e).     [Thus,  where  a  tax-collector  levied  a  tax  on  a 

(a)  32  &  33  Vict.  c.  71,  ss.  15  &  (e)    See,     among      many    other 

48  ;  Ebbs  v.    Boulnois,    L.   R.   10  authorities,   Greenway  v.  Hurd,  4 

Ch.  479.  T.  R.  553;  Parton  v.  Williams,  3 

(5)  Per  Cur.  in  Hughes  v.  Buck-  B.  &  A.  330  ;    Roberts  v.  Orcliard, 

land,  15  M.  &  W.  346.  3  H.  &  C.  760,  33  L.  J.  65;  Hughes 

(c)  See  ex.  gr.  Warne  v.  "Varley,  v.  Bucklaud,  15  M.  &  W.  346  ; 
6  T.  R.  443.  Booth  v.  Cllve,  10  C.  B.  827,  2  L. 

(d)  Wilson  V.  Halifax,  L.  R.  3  M.  &  P.  283  ;  Carpue  v.  London 
Ex.  114,  Newtnu  v.  Ellis,  5  E.  &  and  Briditon  R.  Co.,  5  Q.  B.  747  ; 
B.  115,  24  L.  J.  337;  ["anything  Tarrant  v.  Baker,  14  C.  B.  199; 
done  in  pursuance  of  an  act"  thus  Burling  v.  Hurley,  3  H.  &  N.  271  ; 
including  an  omission  :  see  ante,  Hopkins  v.  Crowe,  4  A.  &  E.  774  ; 
§104.]  Kine  v.  Everslied,  10  Q.  B.  143; 


404  INTEKI'OLATION.  [§  29T 

tlicatie,  which  had  bnen  erroneously  assessed  as  a  dwelling 
house,  it  was  held,  that,  as  the  assessors  were  clothed  with 
power  to  assess  property  according  to  the  class,  to  which,  in 
their  judgment,  it  belonged,  and  consequently  had  juris- 
diction of  the  subject-matter,  the  error  did  not  withdraw^  the 
jirotection  of  the  law  from  those  acting  as  collectors  under 
their  authority."  So  it  w^as  held,  in  Pennsylvania,  that  a 
justice  of  the  peace,  though  he  had  acted  illegally,  as  where 
he  caused  one  who  was  traveling  on  Sunday  to  be  arrested 
on  his  own  view,  yet,  having  general  jurisdiction  of  the 
subject,  and  intending  and  assuming  to  act  as  a  magistrate, 
was  within  the  protection  of  the  act  entitling  him  to  thirty 
days'  notice  of  any  action  to  be  brought  against  a  justice  of 
the  peace  for  anything  done  by  him  "  in  the  execution  of 
his  office  "" — a  phrase  which  is  said  to  mean  "  by  virtue  of 
his  office.'"']  If  an  Act  authorizes  the  arrest  of  a  person 
who  entered  the  dwelling-house  of  another  at  night  with 
intent  to  commit  a  felony  (24  &  25  Vict.  c.  96,  s.  51),  an 
arrest  made  in  the  honest  and  not  unreasonable,  but  mistaken, 
belief  that  the  person  arrested  had  entered  with  that  intent^ 
would  be  protected.  But  the  person  making  the  arrest 
would  not  be  protected  if  he  had  acted  under  a  misconcep- 
tion, not  of  the  facts,  but  of  the  law  ;  as  if,  for  instance,  his 
belief  was  that  the  person  arrested  had  only  attempted  to 
enter;  a  different  offence,  for  which  the  enactment  in 
question  does  not  authorize  arrest ;  or  if,  where  the  law 
justified  an  immediate  apprehension,  an  arrest  was  made 
which  was  not  immediate  {a).  [So,  where  a  justice  of  the 
peace  issued  a  warrant  of  arrest  on  a  criminal  accusation, 
without  probable  cause,  supported  by  oath  or  affirmation, 
such  power  being  expressly  excepted  from  all  the  powers 
of  Government  by  the  bill  of  rights  of  Pennsylvania,  he  was 
held  not  protected  by  his  office."]     The  reasonableness  of 

Hermann  V.  Senescbal,  13  C.  B.  N.  ''^ . Tones  v.    Hughes,  5  Serg.  &• 

S.  31)3,  M   L.    J.   43;   Downing  v.  R.  (Pa.)  303. 

Capel,  L.  R.  3  C.  P.  4G1  ;  Leute  v.  '»  Mitchell   v.  Cowgill,    4  Binn. 

Hart,  Id.  3  C.   P.  323  ;   Chamber-  (Pn.)  20. 

lain   V.    Kimr.    Id.    6  C.    P.   474  ;  (a)  Griffith  v.  Taylor,  2  C.  P.  D. 

Sclmes  V.  JnVlge,  Id.  6  Q.  B.  724;  194  ;  INIorgau  v.  Palmer,  3  B   &  C\ 

Mason  v.  Aird,  51  L.  J.  Q.  B.  244;  72!). 

Dennis  v.  Thwailes,  3  E.\.  D.  21.  '■*    Johnson      v.     Tompkins,     1 

"Scdgw.,alp.  82,  cit.  Ilender-  Baldw.  G02. 
son  V.  Brown,  1  Cai.  (N.  Y.)  92. 


I  298]  INTERPOLATION.  405 

the  belief  is  immaterial,  if  the  belief  be  honest;  though  it  is 
an  important  element  in  determining  the  question  of 
honesty." 

§  298.  Interpolation  of  Words,  etc.— An  Act  (26  &  27  Vict. 
c.  29)  which  enacted  that  no  witness  before  an  election 
inquiry  should  be  excused  from  answering  self-criminating 
questions  relating  to  corrupt  practices  at  the  election  under 
inquiry,  and  entitled  him,  when  he  answered  every  question 
relating  to  those  matters,  to  a  certificate  of  indemnity  declar- 
ing that  he  had  answered  all  such  criminating  questions,  was 
held  to  apply  only  where  the  witness  answered  •'  truly  in  the 
opinion  of  the  commissioners  ;  "  for  it  was  not  to  be  sup- 
posed that  any  answer,  however  false  or  contemptuous,  was 
equally  intended  (a).  [So,  where  a  statute  required  defen- 
dants in  suits  upon  certain  causes  of  action  to  file  affidavits 
of  defence  setting  forth  the  "  nature  and  character  thereof," 
and  in  default  of  such  affidavit,  to  be  filed  within  a  certain 
period,  authorized  the  plaintiff  to  move  for,  and  the  court 
to  enter,  judgment  against  the  defendant,  it  was  held  that 
the  defence  alleged  must  be  set  forth  with  such  particular- 
ity as  to  satisfy  the  court  tho.t  it  was  an  available,  practicable 
defence  in  the  case,  under  the  rules  of  law  and  evidence 
governing  the  same ;  '*  that  the  defendant  must  state  that  he 
believes,  or  show  circumstances  by  his  affidavit  inducing  the 
court  to  believe,  that  he  will  be  able  to  prove  the  matters 
alleged  by  him  upon  the  trial  of  the  cause ;"  and  that  the 
defence  thus  specified  must  be  such  as  would,  if  true,  be 
legally  sufficient  to  bar  the  plaintiif's  demand  in  the  suit  in 
which  it  is  asserted."  It  would  not  be  supposed  that  the  Legis- 
lature intended  the  assertion  of  any  mere  futile,  impracticable, 
or  irrelevant  defence  to  answer  the  purpose  of  delaying  the 

'5  See,  for  an   extended  discus-  made  "  true"  discovery, 

sion  of  the  subject  of  Ihe  protec-  "*  Heatou  v.  Horuer,  35  Leg.  Int. 

tioa  given  by  statutes  to  tiiose  act-  (Pa.)  14(J;  8  Pitts.  L.  J.  N.  S.  118: 

ins?  under  their  authority :    Wilb.,  West    Harrisburg,    etc.,    Ass'n    v. 

Stat.  L.,  pp.  87-98.     See  also  post,  Morgauthal,   3   Pears.    (Pa.)    343; 

§  423.  Leonard  v.  Fuller,  1  Penny.  (Pa.) 

(a)  R.  V.   Hulme,  L.  R.  5  Q.  B.  387. 

377.      It   is    observable   that    this  •"  Black  v.  Halstead,  39  Pa.   St. 

interpolation  was  made  in  the  Act.  64. 

notwitlisianding  lliat  it  repealed  an  "*  West  v.   Simmons,  2   Whart. 

earlier  enactment  which  had  pro-  (Pa.)  261  ;   Rising  v.  Patterson,  5 

tected   the  witness  only  when  he  Id.  316. 


406  INTEliPOLATION.  [§  21>1> 

plaintiff's  ri<^lit  to  judgnieiit,  and  of  eonipclliiig  liim  to  go  to 
trial ;  nor  required  the  ''  nature  and  character"  of  the  defence 
to  be  stated,  unless  the  court  Avas  to  pass  upon  its  sufficiency 
as  a  defence.]  Tiic  374th  section  of  the  Merchant  Shipping 
Act,  1854,  which  enacts  that  no  license  granted  by  the  Trin- 
ity House  to  pilots  "  sliall  continue  in  force  beyond  the 
31st  of  January,"  after  its  date,  but  that  "the  same  may 
be  renewed  on  such  31st  of  January  in  every  year,  or  any 
subsequent  day,"  was  construed  as  meaning,  not  that  the 
renewed  licenses  must  be  issued  on  or  after  that  day,  but 
that  they  should  take  effect  from  the  31st  of  January.  This 
departure  from  the  strict  letter  was  justified  by  the  great 
inconvenience  which  would  have  resulted  from  a  rigid  adher- 
ence to  it,  since  it  would  have  left  the  whole  district  for  a 
certain  period,  probably  days,  possibly  weeks,  without  qual- 
ified pilots  {a). 

§  299.  In  the  7th  section  of  the  Railway  and  Canal  Traf- 
fic Act  of  1854,  which  enacts  that  railway  and  canal  compa- 
nies shall  be  liable  for  the  loss  or  any  injury  done  to  "any 
horses,  cattle  or  other  animals"  (which  would  include  a 
dog)  entrusted  to  them  for  carriage,  with  the  proviso  that 
no  greater  damages  should  be  recovered  for  the  loss  of,  or 
injury  done  to,  "  any  of  such  animals  ""beyond  the  sums 
thereinafter  mentioned, — specifying  certain  sums  for  horses, 
neat  cattle,  sheep  and  pigs,  but  making  no  mention  of  dogs, 
— the  proviso  was  read,  in  order  to  reconcile  it  with  the 
enacting  part,  as  dealing  only  with  "any  of  the  following  of 
such  animals"  (J),  [It  has  already  been  seen  "  that  a  stat- 
utory provision  forbidding  the  granting  of  new  trials  for 
"any  of  the  following"  reasons,  means,  for  "  anyone  of  the 
following"  reasons.]  Where  a  railway  company  was  made 
liable  to  make  good  the  deliciency  in  the  parochial  rates 
arising  from  their  having  taken  rateable  ])roperty,  "  until  its 
works  were  completed  and  liable  to  assessment,"  the  House 
of  Lords  held  that  the  intention  was  that  the  liability  should 

{a)  The  Beta,  3  Moo.   N.  S.  23.  anothor  instance    of  interpolation 

(b)    Harrison       v.      London      &  in    Perry  v.   Skinner,  2   M.  &  W. 

Bri.iclitoM  R.  Co.,  2  B.  &  S.  122,  2i)  471,  s.kp.  ^  278. 

L.    .1.    209 ;    reversed    on   anoUier  "  Thurston  v.    State,   3  Coldw, 

point.  Id.,  and  31  L.   J.  113  ;  It.  v.  ^Teun.)  115,  ante,  ^  249. 

Straclian,  L.  K.  7  Q.  B.  4G3.       See 


g  299]  INTKllI'oI.A  TlitX.  407 

cease  as  reji;ards  any  one  ])arisli,  as  soon  as  that  portion  of 
the  line  whicli  ran  through  it  was  completed  ;  in  other  words, 
that  tiie  Act  was  to  read  as  iixing  the  liability  when  "  its 
works  in  tJie  parish  wtire.  completed  "(«)•  [Where  a  statute 
gave  an  action  by  any  person  in  possession  of  realty  against 
any  person  claiming  an  advcsrse  "  estate,  interest,  or  lien 
therein,"  and  by  any  person  out  of  possession  against  any 
one  claiming  an  adverse  "  estate  or  interest  therein,"  it  was 
held  that  the  word  "  lien  "  should  be  read  in  the  last  provision 
also  as  having  been  intended,  but  omitted  by  oversight.*" 
Where  to  a  statute  prescribing  tliat  a  person,  on  conviction 
of  a  certain  offence,  is  to  be  imprisoned  in  the  penitentiary 
not  less  than  two,  nor  more  than  live,  years,  and  a  subsequent 
act  adds  the  words  ''  or  by  tine  and  imprisonment,  one  or 
both,  at  the  discretion  of  the  jury  trying  the  same,"  the 
court  is  obviously  required  to  supply,  after  the  word  "or" 
the  words  "be  punished."''  So,  wdiere  a  statute  afiixed  to 
the  commission  of  a  certain  offence  a  penalty  of  "not  less 
than  one  nor  mqre  than  three  hundred  dollars,"  it  was  lield 
that  the  minimum  penalty  was  one  hundred  dollars."  So, 
where  an  act  made  it  the  duty  of  the  overseers  of  the  poor 
of  every  district  to  furnisli  relief  to  every  poor  person  within 
the  same,  not  having  a  settlement  therein,  who  should  apply 
for  relief,  "until  such  person  can  be  removed,"  it  was  inti- 
mated that  the  provision  was  to  be  read,  ''  until  such  person 
can  safely  be  removed,"  and  that  an  attempt  to  remove  liim 
when  in  a  condition  of  health  making  the  removal  a  risk  of 
his  life,  would  lay  the  overseer  open  to  indictment ;'"  the 
warrant  for  this  interpolation  being  the  proper  and  reason- 
able effect  of  the  word  can.  It  has  already  been  seen  how 
the  phrase  "May  15,  next"  in  a  statute,  was  ascertained 
to  mean,  and  read,  "May  15  next  thereafter.""     In  an  act 

(a)  East  London  R,  Co.  v.  White-  decision.     See  §  414. 

church,  L.  R.  7  H.  L.,  89,  sup.  §  «»  Kelly  Tp.    v.    Union   Tp.,  5 

21.  Watts  &  S.    (Pa.)    535,    53(5,    per 

20  Donohue  v.  Ladd.    31    Minn.  Gibson,  C.  J. 

244.  '^-^    Fosdicli    v.    Perrysburg,    14 

2i' Turner  V.  Stafe,  40  Ala.  21.  Ohio  St.  472.  ante,    §  33.      Com- 

22  Worth  V.  Peck,  7  P:v.  St.  268.  pare,    also,     as    an     instance      of 

It  may  l)e  questioned  whether  this  virtual  interpolation  :  Phihidelphia 

construction  amounted  to  an  inser  v.  Pass.  Ry.  Co.,  102   Pa.  St.  190, 

lion  of  the  word  "  hundred  "  after  ante,  §  142. 
"one."     ISIo  reason  is i^iven  for  the 


408  INTERPOLATION.  [§  300 

making  it  penal  to  "  bu}',  sell  or  receive  from  any  slave," 
etc.,  the  word  "  to  "  was  interpolated  to  give  effect  to  the 
word  "sell.""] 

§  300.  A  case  in  the  QueeiTs  Bench  may  be  cited  as  fur- 
nishing a  remarkable  example  of  judicial  modification  for 
the  purpose  of  supplying  an  apparent  case  of  omission,  and 
avoiding  an  injustice  and  absurdity,  such  as  the  Legislature 
was  presumed  not  to  luive  intended.  Under  the  11  &  12 
Vict.  c.  110,  an  insolvent  prisoner  for  debt  might  be  dis- 
(iharged  from  imprisonment,  either  upon  his  own  petition, 
or  upon  the  petition  of  any  of  liis  creditors.  The  10  &  11 
Yict.  c.  102,  in  abolishing  the  circuits  of  the  Insolvent  Com- 
missioners, and  transferring  their  jurisdiction  to  the  County 
Courts, provided  that  "  if  an  insolvent  petitions,"  the  Insolv- 
ent Court  should  refer  his  petition  to  the  court  of  the  dis- 
trict where  he  was  imprisoned  ;  but  it  omitted  all  mention 
of  cases  where  the  ])etitioner  w^as  a  creditor.  The  court, 
however,  considered  that  an  intention  to  include  the  latter 
sufficiently  appeared.  To  confine  the  section  to  its  literal 
meaning  would  involve  the  unjust  result  that,  though  a 
vesting  order  might  be  nuide,  and  the  debtor  be  deprived  of 
his  property,  he  would  remain  imprisoned.  The  words  "if 
iin  insolvent  petitions"  were  accordingly  understood  to  have 
merely  put  that  case  as  an  example  of  the  more  general  in- 
tention, viz.,  "if  a  petition  be  presented."  For  the  pur- 
poses of  the  Legislature,  it  was  immaterial  whether  the 
petition  was  the  insolvent's  or  the  creditor's  (a).  [And  an 
instance,  scarcely  less  remarkable,  of  the  virtual  insertion  of 
words  in  an  act  imposing  taxation,  is  the  decision,  already 
more  than  once  referred  to,  of  the  Supreme  Court  of  Penn- 
sylvania, upon  the  act  of  April  24,  1874,  wdiich  refers  to 
corporations  doing  business  in  the  state,  and  possessing  "the 

"  Worrell  v.  State,  13  Ala.  732.  words  "first  day  of,"  but  an  appii- 

Under  a  slutule  requiring  sales  of  cation  of  tlic  technical  rule  that  a 

land  lor  taxes  to  be   made  on  the  torni  is  to  be  regarded  in   law  as 

second     Monday     succeeding    the  one   day  ;   so   that   a   sale   on   the 

term    at    which     judgment      was  second     Monday    succeeding     the 

obtained,    a    sale    on    the    second  adjournment   of   the    term   would 

JNloiiday   succeeding  the  first   day  have   been    equally  a    compliance 

of  the  term  was  held  a  compliance  with  the  statute  :  Ibid. 
with  the   requirement:   Jk';-ior    v  (a)  K.  v.  Dowling,  8  E.  &  B.  005; 

Powell,  7  111.  119.     This,  however,  E.\p.     Greenwood,    '27    L.    .1.    28. 

was   not    au    interpolation    of    the  S.  C. 


^  301]  ELIMINATION.  409 

corporate  right  or  privilege  to  mine,  or  to  purchase  and  sell 
coal."  It  was  hold  that  the  object  of  the  law  was  to  "  reach 
every  corporation  which  purchases  and  sells  coal,  which 
mines  coal  on  its  own  land  or  land  it  has  leased,  or  which 
(Causes  coal  to  bo  mined  under  a  lease,  contract,  grant  or  min- 
ing privilege,  to  unincorporated  persons  on  property  that  it 
owns,  or  has  a  coal  privilege  or  interest  therein."  Accord- 
ingly, it  was  held  to  embrace  a  corporation  which  owned 
extensive  coal  lands  and  leased  them  to  others  to  be  worked, 
the  corporation  itself,  by  its  charter,  being  expressly  pro- 
hibited from  mining.'**] 

§301.  Elimination  of  Words,  etc. -Again,  notwithstanding 
the  general  rule  that  full  effect  must  be  given  to  every 
word,  if  no  sensible  meaning  can  be  given  to  a  word  or 
phrase,  or  if  it  would  defeat  the  real  object  of  the  enact- 
ment, it  may,  or  rather  it  should,  be  eliminated  («).  The 
Carrier's  Act,  1  Will.  4,  c.  68,  which  enacts  that  a  carrier 
shall  not  be  responsible  for  the  loss  of  articles  delivered  for 
carriage,  unless  the  sender  declares  their  value  and  nature, 
at  the  time  of  delivery,  "  at  the  office  "  of  the  carrier,  was 
held  to  protect  the  carrier,  where  the  parcel  had  been  de- 
livered to  his  servant  elsewhere  than  at  the  office,  and  no 
•declaration  had  been  made  either  there  or  elsewhere;  the 
fair  meaning  of  the  statute,  and  the  j)aramount  object  of 
the  Legislature  being  that  the  carrier  should  in  every  case 
be  apprised  of  the  nature  and  value  of  the  article  entrusted 
to  him,  whether  it  was  delivered  at  the  office  or  elsewhere 
(b).  An  Act  (25  &  26  Vict.  c.  114)  which  authorized  con- 
stables to  search  any  person  whom  they  suspected  of  coming 
from  any  land  in  unlawful  pursuit  of  game,  and,  if  any  game 
was  found  upon  him,  to  detain  and  summon  him,  was  held 
to  authorize  a  constable  to  summon  a  man  whom  he  saw  on 
a  :ootway,  with  a  gun  in  his  hand,  picking  up  a  rabbit 
thrown  from  an  adjoining  enclosure,  just  after  the  report  of 
a  gun,  bat  whom  he  did  not  search.  There  was  nothing  in 
the  general  object  of  the  Act  to  lead  to  the  supposition  that 

26  Big  Black  Creek,  etc..  Co.  v.  D.  701;   though   in   that  case  the 

Com'th,  94  Pa.  St.  450,  455.  elimination   was  not  necessary,  2 

(a)  Per  Lord  Abinger  in  Lyde  v.  C.  P.  D.  99. 
Barnard.  1  ]\I.  &  W.  115;  pe?''Brett,  (6)   Baxendale  v.    Hart,    6    Ex. 

L.  .].,  in   Slone  v.  Yeovil,  1   C.  P.  709,  21  L.  J.  12;]  ;  per  Cam.  Scac. 


410  ELIMINATION.  [§  302 

"the  enormovis  absurdity"  of  requiring  an  actual  bodily 
search  under  such  circumstances  was  intended ;  and  such  a 
departure  from  the  language  of  the  Act  was  therefore  con- 
sidered as  really  meeting  the  true  intention  {a).  So,  the  35 
Geo.  3,  c.  101,  wliich  empowered  justices  to  suspend,  in  cas'o 
of  sickness,  the  order  of  I'einoval  of  any  ]')auper  who  should 
be  "brought  before  them  for  the  purpose  of  being  removed," 
was  construed  as  authorizing  su(!h  suspension  without  the 
actual  bringing  up  of  the  pauper  before  the  justices;  as  the 
literal  construction  would  have  defeated  the  Immune  object 
of  the  enactment  (b). 

§  302.  [Similarly,  words  have  been  rejected  as  surplusage 
in  the  following  instances.  Where  a  statute  provided  for  an 
indictment  "on  conviction"  of  bribery,  the  words  "on  con- 
viction," which,  if  retained,  would  have  made  the  act  nuga- 
torj',  were  rejected  upon  the  construction  of  the  act ;"  so  the 
word  "such,"  where  it  was  apparent  that  it  liad  no  reference 
to  anything  preceding  it  ;*'  so,  in  iin  act  providing  a  punish- 
ment "  if  any  guardian  of  any  white  female  under  the  age  of 
eighteen  years,  or  of  any  other  person  to  whose  care  or  pro- 
tection any  such  female  shall  liave  been  confided,  shall  defile 
her,"  etc.,  the  word  "of"  before  "any  other  person;""'  so,, 
in  a  statute  intended  to  confer  jurisdiction,  the  word  "not," 
which,  if  retained,  would  Iiave  rendered  the  act  meaning- 
less.'" So,  a  clause  purporting  to  define  the  meaning  of 
"obligation  or  other  security  of  the  United  States"  as  used 
in  other  parts  of  the  act  was  applied  to  the  terms  "obliga- 
tion" and  "security"  actually  used,  those  portions  of  the 
])hi'ase  not  appearing  in  any  other  part  of  the  statute  being, 
in  effect,  rejected  as  surplusage."  And  where  an  act  gave,, 
and  regulated  the  exercise  of,  the  right  of  appeal  from  the 
judgment  of  a  justice  of  the  peace,  and  then  provided,  tlmt, 
"  upon  such  appeal  from  the  decision,  determination  or  order 
of  two  justices,"  etc.,  it  was  held  that  the  word  "  two,"  in 

(a)  Hall  V.  Knox,  4  B.  &  S.  515.  ■"  U.  S.  v.  Steiu,  5  Blatchf.  512. 
33  L.  J.  M.  C  1.     Sec  also  sup.  ^i^         ^s  Q^.^lQ  y.  Beaslev,  5  Mo.  91. 
245,  204.     But  in  Clarke  v.   Crow-         -^  Siate  v.  Acuff,  (5  I\Io.  54. 

(k-r,  L.  R.  4  C.  P.  G38,  and  Turner  ^o  Chupmau   v.    State,    16    Tex. 

V.  ]\Iorgan,  L.  R  10  C.   P.  587,  the  App.  76  ante,  §  265. 

statute  was  construed  strictly  and  *'  U.    S.    v.    llossvalley,   3  Bea, 

literally.  157. 

(b)  If  V.  Everdon,  Jt  East,  101. 


§   302]  ELIMINATION.  411 

view  of  the  explicit  reference  to  the  appeal  before  given^ 
which  was  distinctly  an  appeal  from  the  jiulgment  of  a  single 
justice,  must  have  been  inserted  by  mistake  and  was,  there- 
fore, rejected."  Where  an  amendatory  act  referred  to  the 
act  intended  to  be  amended  by  its  date,  title  and  subject- 
matter,  a  mistake  in  the  first  two  was  deemed  immaterial  and 
the  erroneous  reference  thereto  simply  rejected,  the  reference 
to  the  subject-matter  being  sufKciently  predse  to  identify  the 
amended  act."  So,  where  the  title  of  an  act  refei-red  to,  and 
its  enacting  clause  extended  the  provisions  of,  "  an  act  |)assed 
in  1839,  ch.  205,"  etc.,  it  was  held  to  be  a  sufficient  identifi- 
cation of  the  act  of  1838,  ch.  205,  which  was  passed  in  March, 
1839,  especially  as  there  was  no  act  passed  upon  that  subject 
at  the  session  of  1839."  And  so  was  a  reference,  in  an  act 
authorizing  judgments  for  want  of  an  afhdavit  of  defence  in 
suits,  inter  alia,  upon  "  liens  of  mechanics  and  materialmen, 
under  the  act  of  17  March,  1836,"  there  having  been  an  act 
upon  that  subject  approved  17  March,  1806,  and  another, 
which  took  its  place,  approved  16  June,  1836,  and  the  refer- 
ence clearly  being  to  the  latter  act,^*  So,  again,  an  amend- 
ment, in  terms,  to  §  293  of  an  earlier  act,  was  construed  as 
referring  to  §  296  of  the  same,  the  subject-matter  of  the 
amendment  pointing  out  the  latter  section  as  the  only  one 
to  which  it  could  properly  refer,  and  the  alternative  for 
such  a  construction  being  the  nullification  of  the  amendment." 
Upon  the  same  principle,  in  a  reference  by  a  statute  to  the 
vote  of  a  town  respecting  division,  etc.,  a  wrong  date,  given 
as  that  of  the  election,  will  be  rejected  as  surplusage,  the 
reference  to  the  vote,  there  having  been  only  one,  being 
otherwise  sufficiently  descriptive."     And   where  a  statute, 

^•^  McCahiin  v.   Hirst,    7    Watts  take,  and  that  a  different  act  was 

(Pii.)   175.      Comfort  v.  Leland,  5  intended  to  be  referred  to.  effect 

Wliart.  (Pa.)  81  ;   Gue  v.  Kline,  13  will   be   given   to   this    intention  : 

Pa.  St.  GO,  6-1.  School   Dir's  Distr.  No.  5  v.   Sch. 

"^   Madison,    etc..    Plank    Koad  Dir's   Distr.    No.   10,   To   111.   249; 

Co.  V.  Reynolds,  8  Wis.  287.  Poock  v.  Lafayette  Bid;?.  Ass'n.  17 

3^  Pue  V.  Iletzell,  IG  Md.  5:39.  Ind.  357  ;   People  v.  Hill,  3  Utah, 

'^   Bradbury  v.    Wageahurst.  54  334.      See  al.eo  Blakc  v.  Brackett, 

Pa.  St.  180,  183.  47  Me.  28  ;   Gibson  v.   Belcher,  1 

3"  People  V.   King,   28   Cal.  2G5.  Bush  (Ky.)  145. 

And  see,  to  the  effect,  that,  where  ^^    Shrewsbury    v.   Boylstou,    1 

it  is  apparent  from  an  act   that  a  Pick.  (Mass.)  105. 
reference  iu  it  to  another  is  a  mis- 


412  "  OK  "— ''  AND."  [§  303 

intended  to  validate  a  certain  city  ordinance,  passed  April 
12,  18GG,  whicli  had  formerly  been  declared  void  by  the 
Supreme  Court  of  the  state,  in  the  preamble,  referred  to  the 
ordinance  as  adopted  on  July  13,  ISGG,  but  also  referred  to 
its  provisions  and  to  the  fact,  the  names,  the  term  and  the 
number  of  the  case  in  whicli  the  decision  of  the  court  thereon 
had  been  rendered,  and  the  purport  and  effecton  the  ordinance 
thereof,  it  was  held  that  the  subject- nuitter  of  the  act  was 
sufficiently  identified  plainly  to  correct  the  error  in  the  date, 
i.  6.,  to  warrant  its  rejection  as  surplusage.^'] 

§  303.  "  Or,"  read  "  and."— To  carry  out  the  intention  of  the 
Legislature,  it  is  occasionally  found  necessary  to  read  the 
conjunctions  "or"  and  "and,"  one  for  the  other.  [Indeed. 
those  words  are  said  to  be  convertible  into  each  other,  as  the 
sense  of  the  enactment  and  the  necessity  of  harmonizing  its 
provisions  maj^  require.'"]  The  1  Jac.  1,  c.  15,  whicli  made 
it  an  act  of  bankruptcy  for  a  trader  to  leave  his  dwelling- 
liouse  "to  the  intent,  c^*  whereby  his  ci-editors  might  be 
defeated  or  delayed,"  if  construed  literally,  would  have 
exposed  to  bankruptcy  every  trader  who  left  his  home  even 
for  an  hour,  if  a  creditor  called  during  his  absence  for  pay- 
ment. This  absurd  consequence  was  avoided,  and  the  real  in- 
tention of  the  Legislature,  beyond  reasonable  doubt,  effected, 
by  reading  "  or  "  as  "  and  "  ;  so  that  an  absence  from  home 
was  an  act  of  bankruptcy  onl}'  when  coupled  with  a  design 
of  delaying  or  defeating  creditors  {a).  [So,  in  Mass.  Gen. 
St.,  ch.  167,  §  6,  in  the  words  "  in  a  fictitious  or  pretended 
lottery,"  the  word  "  or  "  is  read  "  and,"  the  whole  phrase 
thus  being  construed  as  describing  a  single  offence.""  The 
same  construction  was  put  upon  the  same  word  in  a  statute 
defining  burglar}'  as  to  "  break  or  enter  ; ""  and  in  a  statute 

28  Com'th  V.  Marshall,  69  Pa.  St.  moved,    and    "and"    subslitiited 

328,  3:]2.  therefor. 

»8  State  V.  Brandt,  41  Iowa,  593;  (a)  Fowler  v.  Padgct.    7  T.  R. 

Stale  V.  Myers,  10  Id.  448  ;  People  509.      See  also  K.    v.  Mortlake.  6 

V.    Sweelser.    1   Dak.    308;   Bish.,  East  37. 

Wr.  L.,  ^  243.     But   sec   Douglass  •"*  Com'th   v.    Harris,    13   Allen 

V.  Eyre,  Gilp.  147,  where  it  is  said  (Mass.)  534. 

that  "or"   never    means    "and,"  ■"  Holland  v.  Com'th,  83  Pa.  St. 

but  that,  when  clearly  necessary,  306,  3,J6.    Comp.  Blenicr  v.  People, 

in  order  to  give  effect  to  a  clause  76    111.    265;    Vance    v.    Grey.    9 

in  a  will  or  a  legislative  provision,  Bush  (Ivy.)  656. 
"  or "     has    been   clianged   or    re- 


§  304]  "or"— <'AND."  413: 

pimishiiii^  persons  wlio  shall  place  obstructions  in  a  water- 
Course,  whereby  the  "flow  of  water  is  lessened,  or  navigation 
impeded.""  And  so,  too,  it  was  held,  that,  in  an  act  requiring 
a.  certificate  of  consent  of  parent  or  parents,  guardian,  etco 
to  the  marriage  of  minors,  if  such  parent,  etc.,  live  within 
the  province  or  can  be  consulted  with,  "  or  "  must  be  read 
"  and,"  as  it  could  not  have  been  intended  "  to  send  the 
justice  or  other  person  on  a  voyage  of  discovery  "  to  find 
the  parent  or  guardian  beyond  the  limits  of  the  province." 
The  same  construction  was  placed  upon  the  M'ord  "or" 
in  the  California  Civil  Code,  §  978,  between  the  various 
clauses  referring  respectively  to  the  undertaking  for  costs 
on  appeal,  and  an  undertaking  for  the  stay  of  proceed- 
ings, thus  making  the  undertaking  for  costs  essential  in  all 
cases,"*  The  married  woman's  act  of  1848,  in  Pennsylvania, 
contained  a  provision  making  a  married  woman  liable  upon 
her  contracts  for  necessaries,  providing,  however,  that  judg- 
ment should  not  be  rendered  against  her  unless  it  should 
appear  that  the  debt  was  "  contracted  by  the  wife,  or  incurred 
for  articles  necessary  for  the  support  of  the  family,"  etc.  It 
is  obvious  and  was  held  that  "or"  must  be  read  "and.""' 
In  the  construction  of  the  act  of  Congress  of  6  August,  1861-, 
providing  for  the  seizure  and  confiscation  of  property  used 
in  aid  of  the  rebellion,  and  for  its  condemnation  in  the  dis- 
trict or  circuit  courts  of  the  United  States  having  jurisdiction 
of  the  amount  "or"  in  admiralty,  it  was  held  that  "or" 
must  be  read  "and.""] 

§304.  "And"  read  "or"— The  converse  change  was  made 
in  a  turnpike  Act  which  imposed  one  toll  on  every  carriage 
drawn  by  four  horses,  and  another  on  every  horse,  laden  or 
not  laden,  but  not  drawing  ;  and  jirovided  that  not  more 
than  one  toll  should  be  demanded  for  repassing  on  the  same 
day  "  with  the  same  horses  a7id  carriages."  It  was  held  that 
the  real  intention  of  the  Legislature  required  that  this  "and" 

^■^  State  V.  Poo],  74  N.  C.  402.  «  ]\i„,.iay  v.   Keyes.  35  Pa.   St. 

^sBollin   V.    Shiiiier,  12  Pa.  St.      384,  3U1. 
205,206.  ■*'^  Union  Ins.    Co.  v.    U.    S.,   6 

^■*  McConky  v.  Alameda  Co.  Wall.  759.  See  also  post,  §  804, 
Super.  Ct.,  50Cal.  83.  Foster  v.    Com'th,    8   Watts  &  S. 

(Pa.)  77. 


414  "or"— "and/'  [§  304 

should  be  read  as  "  oi',"  and  that  a  cari'iage  repassing  with 
dill'ej'ent  horses  was  not  liable  to  a  second  toll.  The  toll 
was  imposed  on  the  carriage  ;  and  it  was  ininiaterial  whether 
it  was  drawn  by  the  same  or  dilTerent  horses  («).  The 
Statute  of  Charitable  Uses,  which  speaks  of  property 
to  be  employed  lor  the  maintenance  of  "sick  and 
maimed  soldiers,"  referred  to  soldiers  who  were  either  the 
one  ''  or"  the  other,  and  not  only  to  those  who  were  both  (b). 
[A  provision  in  the  fourth  section  of  an  act  regulating  the 
sale,  etc.,  of  liquors,  that  any  person  violating  "  the  first  and 
second  sections  of  this  act "  shall  forfeit,  etc.,  was  held  to 
render  a  person  liable  for  the  violation  of  either  the  first  or 
the  second  section,  the  same  being  of  such  a  character  as  to 
nudce  an  infringement  of  either,  an  independent  offence."^ 
So,  in  a  statute  which  was  supplementary  to  another,  and 
prescribed  a  punishment  by  "fine  and  imprisonment,"  the 
word  "and"  was  read  "  or,"  such  being  the  reading  of  tlie 
original  act,  and  there  being  no  indication,  beyond  the 
change  of  the  conjunction,  of  a  design  to  inflict  the  cumulated 
punishment."  But  possibly  the  most  striking  illustration  of 
the  convertibility  of  tlnse  words  is  afforded  by  the  coiistruc- 
tion  put  upon  a  Pennsylvania  statute  which  declared  that  no 
publication  outside  of  court  respecting  the  conduct  of  tlie 
judges,  officers  of  the  court,  jurors,  witnesses  and  parties 
on  a  question  pending  before  the  court,  sliould  be  a  con- 
tempt punishable  by  attachment ;  but  that  the  party  ag- 
grieved by  such  publication  might  proceed  against  the 
"author,  printer  a;i6^  publisher,"  or  either  of  them,  by  in- 
dictment; or  he  might  bring  an  action  at  law  and  recover 
such  damages  as  a  jur}'  might  think  fit  to  award.  It  w^as 
held  that  the  word  "  and "  sliould  be  read  "  or,"  so  as  to 
give  an  indictment  against  all  the  several  persons  designated, 
as  was,  indeed,  intimated  to  be  the  intention,  hy  the  addi- 
tion "or  either  of  them,"  and  not  to  convey  the  idea,  as  in 
grammatical  strictness,  the  language  would,  that  "  author, 
printer   and    publisher,"  (or,  at   least,  "  printer   and    pub- 

(«)  Waterbouse  v.  Keen,  6  Dowl.  "  People  v.    Sweetscr,    1   D;\k. 

&  R.  257,  wronniv  reported  in  the  308. 

miiru;inal  note  in  4  B.  &  C.  200.  "»  Com'th  v.  Griffin,   105   Mass. 

{h)  Dul<e,  Cbaril.  Uses.  134.  185.     See  post,  ^§  378,  et  scq. 


§305]  "or"— "and.''  415 

lisliei',")  were  supposed  to  be  one  person  ;  and  tliat  the  word 
"  or"  should  be  read  "  and  "  so  as  to  give  the  party  injured 
both  the  riglit  to  prosecute  and  a  right  of  civil  action  for 
<3ainages,  and  to  preclude  the  idea  that  the  Legislature  in- 
tended to  give  the  injured  party  merely  the  choice  between 
a  criminal  and  a  civil  proceeding."] 

§  305.  Limits  of  Interchangeableness  of  "  and  "  and  "  or  " — This 
substitution  of  conjunctions,  however,  has  been  sometimes 
made  witliout  sufficient  reason.  It  may  be  questioned,  for 
instance,  whether  the  judges  who  "  were  at  the  making"  of 
the  Statute  2  Hen.  5,  c.  3,  which  required  that  jurors  to  try 
an  action  when  the  debt  "  or  "  damages  amounted  to  forty 
marks,  should  have  land  worth  forty  shillings,  were  justified 
in  construing  it  "by  equity,"  and  converting  the  disjunctive 
"or"  into  "and"  {a).  The  Court  of  Queen's  Bench,  on 
one  occasion,  held  that  the  power  given  to  justices  by  the 
Highway  Act,  5  &  G  Will.  4,  c.  50,  to  order  the  diversion 
of  a  highway,  when  it  appeared  "  nearer  or  more  commo- 
dious to  the  public,"  was  limited  to  cases  where  the  new 
road  was  both  nearer  and  more  commodious  (Jj)  ;  but  the 
same  Court  lately  held  that  the  power  was  exercisable  when 
the  new  road  was  either  the  one  or  the  other  (c). 

[It  has  been  said,  that  in  a  penal  statute,  "and  "  can  never 
be  construed  "  or."  '"  It  is  sufficiently  apparent  from  the 
illustrations  already  given,  that  both  words  are  interchange- 
able, where  the  sense  and  objects  of  the  enactment  require 
the  one  to  be  substituted  for  the  other,  in  penal  statutes  as 
well  as  in  others,  and  as  against  the  offender  as  well  as  in 
his  favor."  But  it  need  scarcely  be  repeated,  that  where 
the  meaning  of  the  act  is  plain,  and  there  is  notliing  in  it  to 
call  for  the  substitution,  the  court,  in  construing  the  act,  is 
not  at  liberty  to  make  it."] 

«  Foster  v.  Com'th,  8  Watts  &  5"  U.  S.  v.  Ten  Cases  of  Shawls, 

S.  (Pa.)  77,  ver  Gibson,  C.  J.  2  Paine,  162. 

(a)  Co.  Lilt.  272a.  "  See,  also,  to  same  effect,  t^tate 

{b)  K.  V.  Sillies.  1  Q.  B.  910.  v.  Mye'  s.  10  Iowa,  448,   where  an 

(c\  11.  V.  Phillips,  L.  II.,  1  Q.  B.  act  pnnisliiny:  a  person  forcounter- 

648';   Wright  v.  Fraiit,   4  B.  &  S.  feiting  and   having  ia   hrs  posses- 

119,  32  L.    J.    M.    C.    204.      See  siou,  etc..  was  held  to  authorize  a 

Harrington  v.  Ramsay.  8  Ex.  326,  conviction  for  either  ;   Bish.,  Wr. 

22  L.  J.  4G0  ;  Oldficld  v.  Dodd,  8  L.,  ^  243. 

Ex.  578.  "  See  ante,  §  24. 


416  PEIiMISSlVK   WOKDS.  [§  306 

§  306.  Permissive  Words  when,  and  when  not  Read,  as  Impera- 
tive.— Statutes  which  authorize  persons  to  do  acts  for  the  ben- 
efit of  others,  or,  as  it  is  sometimes  said,  for  the  public  good 
or  the  advancement  of  justice,  liave  often  given  rise  to  contro- 
versy when  conferring  the  authority  in  terms  simply  enabling 
and  not  mandatory.  In  enacting  that  they  "  may  "  or,  "  shall, 
if  they  think  fit,"  or  "shall  have  power,"  or  that  "it  shall 
be  lawful "  for  them  to  do  such  acts,  a  statute  appears  to  use 
the  language  of  mere  permission  ;  but  it  has  been  so  often 
decided  as  to  have  become  an  axiom  that  in  such  cases,  such 
expressions  may  have — to  say  the  least — a  compulsory  force 
(a),  and  so  would  seem  to  be  modified  by  judicial  exposi- 
tion. On  the  other  hand,  in  some  cases,  the  authorized  per- 
son is  invested  with  a  discretion,  and  then  those  expressions 
seem  divested  of  that  compulsory  force. 

In  an  early  case,  where  it  was  contended  that  the  13  &  14 
Car.  2,  c.  12,  in  enacting  that  the  churchwardens  and  over- 
seers "shall  have  power  ;ind  authority"  to  make  a  rate  to 
reimburse  parish  constables  certain  expenses,  left  it  optional 
with  them  to  make  it  or  not,  the  Court  held  that  it  was 
obligatory  on  them  to  make  it,  whenever  disbursements  had 
been  made  and  not  been  paid.  "May  be  done,"  it  was 
observed,  is  always  understood  in  such  cases  as  "must  be 
done  "  (5).  So,  where  a  statute  directed  that  churchwardens 
should  deliver  their  accounts  to  justices,  and  enacted  that 
the  latter  "  shall  and  they  are  hereby  authorized  and 
empowered,  if  they  shall  so  think  fit,"  to  examine  the 
accounts,  and  disallow  unfounded  charges,  it  was  held  that 
the  justices  could  not  decline  to  enter  upon  the  examina- 
tion (c),  or  be  at  liberty  to  allow  charges  not  sanctioned  by 
law  {(l).  [An  act  declaring  that  the  supervisors  of  a  county 
are  "  authoi'ized  to  adjust  and  audit"  certain  claims,  to  allow 
the  value  of  work  shown  to  have  been  done,  and  to  cause  the 
amount  to  be  levied  and  collected,  was  held  to  iujport  an 


(«)  Per    cur.    in    K.    v.     Tithe  (c)  K.  v.  Cambridge,  8  Dowi.  89. 

Commrs.,  14  Q.  B.  474.  conip.  R.  v.  Noiiolk,  4  B.   &  Ad; 

(6)  R.  V.  Barlow,  Carth.  29:5.  2  288. 

Salk.  209  ;  R.  v.  Derbv,  tekiii.  370.  ((/)  Barton   v.    Pigott,    L.  R.,  10 

S.  C.                               ^  Q.  B.  80  ;  44  L.  J.  M.  C.  5. 


i^oUT]  Pf:RMIS6IVK  VVOIJDS.  4- 1 T 

impcrativo  dircctioti  upon  thetii  to  that  efFoct  ;''  ami  such  was 
the  construction  of  an  act  which  "  authorized  and  empow- 
ered "  those  officers  to  cause  taxes  illegall}'^  assessed  and  paid 
in  their  county  to  be  refunded,  so  that  it  become  their  duty 
to  do  so  when  truthful  chiims  for  such  taxes  were  duly  pre- 
sented to  them."  So,  too,  where  cities  and  towns  were- 
"  authorized  and  empowered  "  to  make  proper  provisions  for 
the  support  of  the  families  of  enlisted  soldiers,  and  the  means 
of  raising  the  necessary  funds  for  the  purpose  were 
provided."]  Though  the  11  &  12  Vict.  c.  42,  s.  9,  enacts 
tluit  justices  "  may  "  issue  a  summons  on  an  information 
laid  before  them  only  "if  they  shall  think  fit,"  it  was  held 
that  they  were  not  at  liberty  to  refuse  it  on  any  extraneous 
considerations,  such  as  that  the  prosecution  was  inexpe- 
dient {a).  A  charter  which  granted  to  the  steward  and 
suitors  of  a  manor  "  power  and  authority  "  to  hold  a  Court 
to  hear  civil  suits,  was  held  to  make  it  obligatory  to  hold  it 
when  necessary  (l).  Again,  the  Tithe  Commutation  Act 
(5  &  G  Vict.  c.  54,  s.  7),  which  enacts  that  if  any  agreement 
for  the  commutation  of  tithes  made  before  the  Act,  which 
was  not  of  legal  validity,  should  appear  to  the  Tithe 
Commissioners  to  give  a  fair  equivalent  for  the  tithe,  they 
"  shall  be  empowered  "  to  confirm  it,  or,  if  unfair,  to  confirm 
it  nevertheless,  and  to  award  such  a  rent-charge  as  would 
make  it  a  j)roper  equivalent,  and  to  extinguish  the  tithe  ;  it 
was  considered  that  the  Commissioners  were  bound  to 
make  any  such  agreement  between  the  parties  the  basis  of 
their  own  settlement,  and  were  not  at  liberty  to  throw  it 
wholly  aside  in  carrying  out  the  general  policy  of  the  Act, 
viz.,  tithe  extinction  (c). 

§  307.  So,  in  Blackwell's  Case,  Lord  Keeper  North  held, 

=*  People  V.    Superv'rs,    Living-  Milford  v.  Orono,  Id.  529. 

ston,  68  N.  Y.  114;   notwithstand-  (a)  H.  v.  Adamson,    1   Q.  B.  D.. 

ing  a  prior  act  for  a  like   purpose,  201  ;  II.   v.   Fawcelt,  11  Cox,  305. 

■wliich   was  iu  mandatory    terms,  See  R.  v.  Laacashire  JJ.,  L.  R.  11 

liad  been  vetoed  on  tliat  account:  Q.  B.  D.  638. 

Ibid.      See  to  similar  effect  :   Peo-  {b)  R.  v.  Haverlng-atte-Bowcr,  5 

pie  V.    Superv'rs,     Erie,    1    Buff.  B.  &  A.  691  ;   R.    v.  Hastings.  Id. 

Super.  Ct.  (N.  Y  )  517.  692n.,  bolli  better  reported  in  3  D. 

5*  People  V.   Superv'rs,  Otsego,  &  R.  176,  and  1  D.  &  R.  148. 

36  How.  Pr.  (N.  Y.)  1.  (c)  R.  v.  Tithe  Comm.,  14  Q.  B. 

'^  Veazie  v.  China,  50  Me.  518  ;  474. 

27 


4:18  PKIiMI.SSlVK     WORDS.  [j^   DOT 

aiitl  of  the  same  opinion  were  ;:11  the  judj^es,  that  the  statute 
which  enacted  only  tliat  the  Chancellor  "  .-liould  have  full 
pt)wer"  to  issue  a  commission  of  bankruptcy  against  a 
bankrupt  trader,  on  the  petition  of  his  creditors,  imperatively 
required  its  issue ;  declaring  that  **  may "  was  in  efiect 
*'must"  {a).  Under  the  County  Court  Act,  which  enacted 
that  the  Superior  Court  "  maj^ "  give  the  plaintiff  the  costs 
of  his  action,  if  he  lived  more  than  twenty  miles  from  the 
defendant,  it  was  held  that  the  Court  was  bound  to  give 
them  in  every  case  in  which  the  plaintiff  and  defendant 
dwelt  more  than  that  distance  apart  (h).  The  general  Order 
which  makes  it "  lawful  "  for  the  Court  to  order  the  produc- 
tion of  such  documents  in  the  possession  of  a  party  relating 
to  the  action,  "  as  the  Court  thinks  riglit,"gave  the  Court  no 
discretion  to  refuse  an  inspection  in  any  case  where  the 
documents  were  not  pri\ileged  by  law  fi'om  inspection  (c). 
An  Act  which  made  it  "  lawful "  for  a  Court  to  stay 
proceedings  in  actions  against  companies  under  liquidation 
until  proof  of  the  })laintifi''s  debt  {d)  ;  and  one  of  the  bank- 
ruptcy rules  which  provides  that  where  the  Court  has  given 
no  directions  as  to  the  disallowance  of  the  costs  of  impi'oper 
or  unnecessary  j)roceedings,  the  taxing-master  "may"  look 
into  the  question,  were  held  equally  imperative  (e).  [So,  it 
is  said  that  the  grant  of  power  to  amend  implies  the  duty  to 
exercise  it  in  a  proper  case,^"  as  the  grant  to  the  Orphan's 
Court  of  a  power  to  direct  an  issue  devisavit  vel  non,  makes 
it  a  matter  of  right  to  the  part}'  demanding  it  in  conformity 
with  the  statute  to  insist  upon  its  exercise,"  and  the  grant  of 
authority,  for  certain  specified  causes,  to  allow  a  bill  of 
review,  leaves  the  court  no  discretion  to  refuse  it  where  a 

(a)  13  Eliz.  0.  7  ;  1  Jac.  c.  15  ;  (e)  Baines  v.  Woimsley,  47  L. 
Blackwell's  Case,  1  Vern.  153,  2  J.  Ch.  144  ;  Add.  rules,  1875,  r. 
Ch.  Ca.  190  ;  Eq.  Ca.  Ab.  52.  18. 

(b)  McDouaal  V.  Paterson,  11  C.  ^«  Rehfuss  v.  Gross,  108  Pa.  St. 
B.  755,  2  L.   M.   &   P.    681  :   ace.  521. 

Crake   v.   Powell,  2  E.  &  B.  210,  "  Schwilke's  App.,  100  Pa.  St. 

overruling   Jones   v.    Harrison,    (5  028,  under  act  15  Apr.  1832.      Not 

Ex.  328.  so,  however,    as   to   the   power  of 

(c)  Judic.  A.  1875,  Ord.  31,  r.  that  coiut  under  tiie  act  29  Mar., 
n  ;  Buslros  V.  White,  1  Q.  B.  D.  1832,  to  direct  an  issue  to  the 
423.  common     pleas,    which    is    left  a 

(d)  I^Iarsou  v.  Lund,  13  Q.  B.  matter  of  discretion  :  Tlompson's 
«fi4.  App.,  103  Pa.  St.  603. 


^  308]  PKRMISSIVE    WOUDS.  419 

case  is  made  out  under  the  statute.**  Similarly,  where  an 
act  allowed  a  court,  upon  application  of  tlie  defendant  in  an 
ejectment  suit,  after  recovery  by  plaintiff,  to  stay  execu- 
tion, where  he  shows  valuable  betterments,  until  their  value 
is  ascertained,  he  giving  bond  for  damages  and  expenses,  it 
was  held  that  the  court  was  obliged  to  grant  the  stay  upon 
tiuch  application,  etc/"  And  again,  where  an  act  allows  a 
court,  upon  its  own  motion,  or  upon  application,  to  set  apart, 
for  the  use  of  the  surviving  husband  or  wife,  etc.,  certain 
property,  the  exercise  of  the  power  is  obligatory  upon 
application.'"]  An  Act  which  empowered  a  vestrj'  to  make 
a  paving  rate,  and  provided  that  when  it  appeared  to  the 
vestry  that  the  rate  was  not  incurred  for  the  equal  benefit  of 
the  whole  parish,  it  "  might  "  exempt  the  party  not  benefited, 
was  held  to  impose  a  duty  and  not  merely  to  confer  a  power 
on  the  vestry,  to  apportion  the  burden  when  the  case 
arose  (a). 

§  308.  On  the  other  hand,  where  it  was  enacted  that  "  it 
should  be  lawful  "  for  the  Superior  Courts  to  issue  com- 
missions to  examine  witnesses  and  parties  abroad,  it  was  lield 
that  the  Court  was  not  bound  to  issue  such  a  commission 
simply  on  proof  that  the  persons  whose  evidence  was 
required  were  abroad,  but  that  it  was  in  the  discretion 
of  the  Court  to  determine  upon  the  special  circumstances  of 
each  case,  whether  it  was  advisable  in  the  interests  of 
justice  to  issue  it  or  not  (/>).  So,  under  a  statute  which 
enacted  that  where  a  county  bridge  is  narrow,  "it  shall  and 
may  be  lawful "  for  the  Quarter  Sessions  to  order  it  to  be 
widened,  it  was  held,  having  regard  to  the  nature  of  the 
Court  entrusted  with  tlie  power,  and  to  the  subject-mattei-, 
which  might  involve  other  considerations  besides  the  width 
of  the  bridge,  such  as  the  cost  of  the  proposed  woik  and  its 
possible  disproportion  to  any  public  benefit  likely  to  bo 
derived  from  it,  that  it  was  discretionary  to  make  the  order 
or  not  (c).     [So,  an  act  providing  that  an  offender  "  may  ''  be 

^8  Meckel's    App.,    112  Pa.    St.  (5)  1  &  2  Wm.  4,  c.  22;   Castelli 

554.  V.  Groom,  18  Q.  B.  490,  21  L.  J. 

69  Johnson  v.  Tate,  95  K  C.  68.  808. 

«»  Exp.  Ballentiue,  45  Cal.  696.  {c)  43  Goo.  3,    c.    59  ;   lie  New- 

(a)  Howell  v.  Loudon  Dock  Co.,  port  Bridge,  2  E.  &  E.  377,  29  L. 

8  E.  &  B.  212,  27  L.  J.  M.  C.  177.  J.  M.  C.  52. 


420  PERMISSIVE  WORDS.  [§  308 

punished  for  grand  larceny,  altliougli  the  value  of  the  prop- 
erty stolen  was  within  the  limit  of  petty  larceny,  was  held 
to  confer  a  discretion."'  Similarly,  where  it  was  provided 
that  an  indictment  for  polygamy  "  may  "  be  found  and  tried 
in  the  county  where  the  offender  resides  or  where  he  is 
apprehended,  it  was  held  that  the  provision  was  not  in 
derogation  of  the  common  law,  but  nierely  enlarged  the 
jurisdiction,  being  permissive,  not  mandatory  f  and  upon 
the  same  understanding  of  the  effect  of  that  word,  and  nO' 
right  or  benefit  to  any  one  depending  upon  its  construction 
as  obligatory,  it  was  held  that  an  act  providing  that  appeals 
from  the  judgment  of  the  county  court  against  lands  for 
taxes,  etc.,  "  may"  be  taken  to  the  Sn])reme  Court,  did  not 
opei-ate  as  an  implied  repeal  of  a  former  statutory  provision 
giving  an  appeal  in  such  case  to  the  Circuit  Court."] 
Again,  the  enactment  that  if  part  of  the  consideration  for  an 
annuity  were  returned,  or  paid  in  goods,  or  retained  on  any 
pretence,  "  it  should  be  lawful  "  for  the  Court  to  cancel  the 
annuity  deed,  if  it  should  appear  that  ''  any  such  practices" 
had  been  used  ;  the  Court  considered  that  iliis  last  expression 
limited  the  enactment  to  cases  where  any  of  the  forbidden 
acts  had  been  done  malo  animo,  and  held  that  it  was  in  their 
discretion  to  set  the  deed  aside  or  not  (a).  The  Church 
Discipline  Act,  which  enacts  that  in  every  case  of  a  clergy- 
man charged  with  an  ecclesiastical  offence,  or  concerning 
whom  a  scandal  may  exist  of  having  committed  such  an 
offence,  "  it  shall  be  lawful  "  for  the  bishop,  on  the  applica- 
tion of  any  person  complaining  of  it,  or  if  he  thinks  tit,  on. 
his  own  motion,  to  aj^point  a  commission  to  examine  wit- 
nesses, to  ascertain  if  there  be  sutScient  prima  facie  ground 
for  instituLiug  further  proceedings,  was  held  to  leave  it 
discretionary  with  the  bishop  to  appoint  a  commission,  on 
receiving  such  a  complaint.  Having  regard  to  the  pre- 
existing state  of  the  law,  and  the  character  of  the  bishop's 
otKce,  it  was  considered  that  it  was  his  duty,  before  issuing 
the  commission,  to  determine  on  the  expediency  of  instituting 

"  Williams  v.  People,   24  N.  Y.  (a)  5  Geo.  4,  c.  14,  s.  G;  Barber  v. 

405.  Gamson,  4  B.  &  A.  281  ;   Giidle- 

«*  State  V.  Sweetser,  53  Me.  438.  stone  v.  Allen,  1  B.  &  C.  01. 
63  Fowler  v.  Pirkius,  77  111.  271. 


§  309]  PERMISSIVK  WORDS.  421 

the  prosecution,  taking  into  his  consideration  the  nature, 
credibility,  or  importance  of  the  charge,  and  the  status, 
solvency,  and  religious  character  of  the  complainant,  as  well 
as  the  general  interests  of  the  Church  (a). 

§  309.  This  subject  underwent  much  discussion  in  the 
last-mentioned  case,  and  elicited  various  views.  The  Queen's 
Bench  held  that  it  was  imperative  to  issue  the  commission 
where  a  complaint  had  been  made  of  an  ecclesiastical 
ofiEence  {h).  According  to  Lord  Cairns,  sucli  words  as  "  it 
shall  be  lawful,'' are  always  simply  permissive  (c)  or  enabling. 
They  confer  a  power,  and  do  not,  of  themselves,  do  more.  But 
there  may  be  something  in  the  nature  of  the  thing  empowered 
to  be  done,  something  in  the  object  for  which  it  is  to  be  done, 
something  in  the  conditions  under  which  it  is  to  be  done,  some- 
thing in  the  title  of  the  persons  for  whose  benefit  the  power  is 
to  be  exercised,  which  may  couple  the  power  with  a  duty,  and 
make  it  the  duty  of  the  person  in  whom  the  power  is  reposed 
to  exercise  it  when  called  upon  to  do  so  ;  it  lies  on  those  who 
contend  that  an  obligation  exists  to  exercise  the  power,  to 
show  in  the  circumstances  of  the  case  something  which, 
according  to  the  above  principles,  created  that  obligation  ; 
and  the  cases  decide  only  that  where  a  power  is  deposited 
with  a  public  officer  for  the  purpose  of  being  used  for  the 
benefit  of  persons  who  are  specifically  pointed  out,  and  with 
regard  to  whom  a  definition  is  supplied  by  the  legislature  of 
the  conditions  upon  which  they  are  entitled  to  call  for  its 
exercise,  that  power  ought  to  be  exercised,  and  the  Court  will 
require  it  to  be  exercised  {d).  Lord  Blackburn's  opinion  was 
that  the  enabling  words  gave  a  power  which  prima  facie 
might  be  exercised  or  not;  but  that  they  were  compulsory 
whenever  the  object  of  the  power  was  to  effectuate,  not  any 
object  for  the  public  good  or  of  general  interest  or  concern, 
but  only  a  private  legal  right  (e).  Lord  Justice  Bramwell 
considered  that  a  statute  giving  a  power  obviously  meant  that 
the  power  should  be  exercised  ;  that  where  the  conditions 

(a)  3  &  4  Vict.    c.    86  ;   R.    v.  (b)  4  Q.  B.  D.  245. 

•Chichester  (Bp.)  2  E.  &  E.  209,  29  {<•)  5  App.  p.  223. 

L.  J.  23  ;  R.  V.  Oxford  (Bp.)  4  Q.  (d)  5  App.  p.  223. 

B.  D.  525  ;  Julius  v.   Oxford  (Bp.)  (e)  Id.  244. 
■Ti  App.  214. 


422  PERMISSIVE  WORDS.  [§  310 

of  those  cases  are  alwajs  the  same, — as  wnere.  for  instance^ 
the  power  to  give  costs  depends  on  the  single  fact  whether  the 
plaintiff  lived  within  twenty  miles  from  the  defendant, — the 
statute  must  mean  that  the  power  should  be  exercised  in  all 
those  cases,  and  so  is  compulsory  ;  but  that  when  the  circum- 
stances vary,  the  words  empowering  but  not  commanding 
are  not  obligatory  (a). 

§  310,  This  last  view,  pointing  evidently  to  the  distinction 
between  minist(n"ial  and  judicial  acts,  suggests  an  explanation 
of  the  question  which  may  be  here  offered." 

When  a  statute  enacts  that  a  candidate  at  an  election 
"may"  be  present  at  a  polling  place,  or  that  a  clergyman 
accused  of  an  ecclesiastical  offence  "  may  "  attend  the  pro- 
ceedings of  the  commission  appointed  to  inquire  into  the 
accusation,  or  that  a  company  "  may  "  construct  a  railwaj'" 
(J),  or  that  a  plaintiff  "  may  "  sue  in  one  action  for  injury 
done  to  his  wife  as  well  as  to  himself  (c),  [or  "  may  "  appeal 
to  a  certain  court, "^J  it  confers  a  privilege  or  license  which  the 
donee  may  exercise  or  not  at  pleasure,  having  only  his  own 
convenience  or  interests  to  consult ;  and  the  word  "  may  "  is 
then  plainly  permissive  only.  But  it  would  be  difficult  to 
believe  that  Parliament  ever  intended  to  commit  powers  to 
public  persons  for  public  purposes  for  exercise  or  non-exercise 
in  any  such  sj)irit.  An  enactment  that  a  court  or  person 
"  may  "  swear  witnesses  {d) ;  or  that  a  justice  "  may  ''  issue 
a  summons  on  complaint  of  an  offence,  or  the  Chancellor  a 
commission  in  a  case  of  bankruptcy,  is  no  mere  permission 
to  do  such  acts,  with  a  corresponding  liberty  to  abstain  from 
doing  them.     Whenever  the  act  is  to  be  done  for  the  benefit 

(a)  4  Q.  B.  D.  553.  349.      [But,     under    Conn.    (ien. 

"   This   dislinction  is   indicated  Stat.,  tit.   19,  Cli.  5,  ^   11,  wliicli 

in   Com'tii   v.  Clark.  7Watts«fc  S.  provided,  that,  when  any  married 

(Pa.)  127,  1-53,  per  Gib^^ou,  C  J.,  in  woman  sliail  cany  onany  business, 

the   construction    of    a    provision  and  any  right  of  action  shall  accrue 

contained   in    the    schedule    of    a  to  her  iLierefrom,  she  "  may  "  sue 

constitution.     See  §  536.  upon  the  same  as  if  unmarried,  it 

(6)  York  V.  N.  Alidland  11.  Co.,  was    held    that  a  suit    could    be 

1  E.  &  B.  858.  22  L.  J   225  ;  Great  brought  only  in  her  name  :  Kock- 

Western  R.  Co.  v.  K.,  1  E.  &  B.  wcllV.  Clark.  44  Conn.  534.] 

874.     See  also  Nicholl  v.  Allen,  1  «  See  Fowler  v.  Pirkins,  77  111. 

B.  &  S.  934,  31  L.  J.  283.  271,  ante.  §^  308. 

(c)   Broo.ibank    v.    Whitehaven  {d)  Per  Cockburn,  C.  J.,  in  R.  v. 

R.  Co.,  7  H.  &  N.  834,  31  L.  J.  Oxford  (Bp.)  4  Q.  B.  D.  245. 


§  310J  PKltMl^fclVl':   WolMiS 


423 


of  others,  the  word  "may,'"  or  any  of  its  r(|uival(jrits,  simply 
confers  a  power  or  capacity  to  do  the  act.      It  is  facultative, 
BOt  permissive  ;  and  neitiier  by  its  own  connotation,  nor  by 
force  of  any  legal  ])rinciple,  does  it  necessarily  imply  an  option 
■iO  abstain  from  doing  the  act.     On  the  contrary,  it  is  a  legal, 
or  rather  a  constitutional    j)rinciple,  that   powers  given  to 
public  functionaries  or    others  for    pul)lic   purposes  or  the 
public  benefit,  are  always  to  be  exercised   when  the  occasion 
arises.     Whether  this  is  to  be  done  l)y  the  authorized  persons 
on  their  own  initiative,  indeed,  or  oidy  on  the  application  of 
those  who  have  a  right  to  the  exercise  of  the  power,  is  a  sub- 
ordinate question,   which   may  depend  on  the    language  or 
object  of  the  statute,  or  on  the  constitution,  whether  execu- 
tive or  judicitd,  of  the  authorized  body  or  persons,  or  of  their 
course  of  practice.     But  as  regards  the  imperative  character 
of  the  duty,  it  was  laid  down  by  the  King's  Bench  {a)  that 
words  of  permission  in  an  Act  of  Parliament,  when  tending 
to  promote  the  general  beneiit,  are  always  held  to  be  com- 
pulsory ;  and  as  regards  Coui-ts  and  judicial  functionaries, 
who  act  only  when  aj^plied  to,  the  same  rule  was  in  substance 
re-stated  by  the  Common  Pleas,  in  laying  down  that  when- 
ever a  statute  confers  an  authority  to  do  a  judicial  act  (the 
word  "judicial "  being  used  evidently  in  its  widest  sense), 
in  a  certain  case,  it  is  imperative  on  those  so  authorized  to 
exercise  the  authority  when  the  case  arises,  and  its  exercise 
is  duly  applied  for  by  a  party  interested  and  having  a  right 
to  make  the  application ;  and  that  the  exercise  depends,  not 
on  the  discretion  of  the  Courts  or  judges,  but  upon  proof  of 
the  particular  case  out  of    which  the  power  arises  (b).     The 
Supreme  Court  of  the  United  States  similarly  laid  it  down 
that  what   public  officers  are  empowered  to  do  for  a  third 
person,  the  law  requires  shall  be  done   whenever  the  public 
interest  or  individual  rights  call  for  the  exercise  of  the  power ; 
since  the  latter  is  given  not  for  their  benefit,  but  for  his,  and 

{a)  R.  V.  Hastings  (Mayor)  1  D.  missive.     See  ex.  gr.  \\.  v.  Eye,  4 

&  R.  48.  B.  «&  A.  271  ;  Jones  v.  Harrison,  6 

(b)  McDougal  V.  Paterson,  11  C.  Ex.  3'28  ;  Bell  v.  Crane,  L.  R.  8  Q. 

B.   755,  3   L.   M.   &  P.    687.     In  B.  481  ;  R.  v.  South  Weald,  5  B.  & 

some  cases,  this  rule  seems  to  Lave  S.  3<J1.  33  L.  J.  193  ;  De  Beauvoir 

been    overlooked,    and   the    word  v.  Welch.  7  B.  &  C.  266.  See,  also, 

"may"  constnied  as  simply  per-  R.  v.  Norfolk,  4  B.  &  Ad.  '238. 


424:  I'lCRT^IISSIVK  WORDS.  [§  311 

is  placod  witli  the  depositiiry  to  meet  the  deiiuniJs  of  I'iglit, 
and  prevent  the  failure  of  justice.  In  all  such  cases,  the 
Court  observed,  the  intent  of  the  Lei^islature,  which  is  the 
test,  is,  not  to  devolve  a  mere  discretion,  but  to  impose  a 
positive  and  absolute  dut}'  {a). 

§  311.  There  is,  therefore,  aljundant  authority  for  the  pro- 
position that  such  powers  as  are  hereunder  consideration  are 
invariably  imperative;  and  that  it  is  the  duty  of  those  to 
whom  they  are  entrusted  to  exercise  them  whenever  the 
occasion  contemplated  by  the  Legislature  arises.  And  liaving 
regard  to  this  implied  duty,  the  enabling  or  faculative  terms 
in  which  the  power  may  be  couched,  such  as  "  it  shall  be 
lawful,"  are  to  be  regarded  merely  as  the  usual  mode  of  giving 
a  dii-ection  (h)  ;  asiniporting  that  it  is  not  to  be  lawful  to  do 
otherwise  than  as  directed  (c). 

This  is  free  from  doubt  in  all  those  cases  adverted  to  by 
Lord  Bramwell,  where  the  conditions  are  always  the  same  ; 
for  in  those  cases  the  Legislatui-e  has  in  effect  prescribed  the 
specific  facts  out  of  which,  in  the  language  of  tiie  Common 
Pleas,  the  power  arises  ;  and  nothing  is  left  to  be  determined 
or  ascertained  by  the  judicial  discretion.  Where  the  statute 
enacted  that  there  should  be  power  to  levy  a  rate  to  pay  the 
constables  {d),  or  to  issue  a  commission  to  administer  a  bank- 
rupt estate  (<?),  or  that  a  plaintiff  might  have  his  costs  when 
he  lived  a  certain  distance  from  the  defendant  (/),  it  left  no 
other  question  open  for  consideration,  in  the  exercise  of  the 
power,  than  whether  the  money  was  due  to  t'ne  constables; 
whether  there  was  a  bankrupt  trader,  a  legal  debt,  and  a 
petitioning  creditor;  or  whether  the  plaintiff's  and  defen- 
dant's abodes  were  at  the  i)rescribed  distances. 

But  the  general  rule  applies  equally  to  the  other  class  of 
cases,  where  the  power  was  discretionary  ;  for  the  discretion 
which  was  given  was  not  that  of  exercising  the  power,  or  not, 
at  pleasure,  when  the  occasion  did  arise,  but  only  of  deter- 

{a)  Supoivisois  v.  U.  S..  4  Wal-  and  Brecou  K.  Co.,  L.  K.,  9  Ch. 

lace,  43."),  44G.  ~*64. 

{b)  Per    ]\lcllislt,    L.    J..    K.    V.  ((/)  K.  v.  Barlow,  sup.  S^  300. 

Tsorfolk,  supra,  2(55,  :iik1  pur  Jcssol.  (e)  Blackwoll's  Case,  sup.  J-  307. 

M.  K.,  in  Ex  parte  Jarnian,  4  Ch.  (/)  McDougal  v.  Patersoi),  sup. 

I).  838.  §  310. 

(o)  Per  .James.  L.  .1.,  in  Ru  No.itli 


§311]  I'EKMISi-IVK   \V()1M)S.  425 

ininiiii;  wliether  the  occiisioii  had  arisen  in  the  particular 
case  ;  and  this  question  did  not  turn  on  the  character  of  the 
terms,  whether  enablinij;  or  niandatorj,  in  whicli  the  power 
was  conferred,  but  on  the  nature  of  one  or  more  of  the  facts 
on  whicli  the  exercise  was  to  depend,  and  whicli  could  be 
.determined  only  by  the  judicial  discretion  of  the  authorized 
person.  If  a  statute  empowered  justices  to  adjudicate  in 
certain  cases,  that  is,  to  impose  a  certain  penalty  on  persons 
whom  they  should  lind  guilty  of  a  certain  offence,  it  is 
incontestable  that  they  would  liave  no  option  to  decline  the 
jurisdiction  because  the  statute  used  only  the  word  "may" 
instead  of  "shall"  (a).  Whether  the  language  was  fac- 
ultative only,  or  mandatory,  it  would  be  equally  obligatory 
on  them  to  hear  and  determine  the  complaint,  to  decide,  one 
way  or  other,  whether  the  accused  was  guilty,  and  to  impose 
the  penalty  if  he  was;  and  equally  within  their  judicial 
discretion  which  way  to  find  as  to  the  guilt.  If  any  doubt 
were  possible  on  this  point,  it  would  be  removed  by  supposing 
the  power  conferred  on  the  justices,  and  the  finding  whether 
the  occasion  for  its  exercise  had  arisen,  delegated  to  a  jury. 
The  distinction  between  a  discretion  to  exercise  the  power, 
and  a  discretion  to  determine  only  whetlier  the  occasion  for 
it  has  arisen,  is  illustrated  by  the  construction  of  the  enact- 
ment that  justices  may,  if  they  thiidc  tit,  issue  a  summons 
upon  an  information  laid  before  them.  This  power  is  so  far 
discretionary,  that  they  may  grant  or  refuse  the  summons 
according  as  they  judge,  in  the  honest  exercise  of  their  dis- 
cretion {b),  that  a  prima  facie  credible  case  is  shown  for  it ; 
but  its  exercise  is  imperative,  in  the  sense  that  if  their  opinion 
is  that  such  a  case  is  shown,  it  is  not  competent  to  them  to 
refuse  to  exercise  it  on  extraneous  grounds,  such  as  that 
the  prosecution  is  unadvisable  (c).  In  the  case  of  the 
annuity  (d),  the  power,  though  couched  in  enabling  terms 
only,  would  have  been  clearly  imperative,  if  its  exercise  had 
depended  only  on  the  fact  wdiether  the  whole  consideration 
had  been  paid  or  not ;  but  as  the  statute  was  construed  to 

(a)  R.  V.  Cumberland,  4  A.  &  E.  (c)  R.  v.  Adamson,  1  Q.   B.   D. 
695.                                                           201;  R.  v.  Fawccit,  11  Cox.  305. 

(b)  See  sup.  S  147.  (d)  Barber  v.   Ganison,    sup.    § 

308. 


42G  I'ERMISRIVE  WOllDS.  [§<^12' 

require  the  further  fact  that  the  retention  or  return  of  part  of 
the  consideration  had  been  done  with  a  corrupt  or  fraudulent 
motive,  tlie  power  was  so  far  discretionary,  as  the  finding  of 
tliis  particular  fact  was  intrusted  to,  and,  indeed,  could  be 
determined  only  by  the  judicial  discretion  of  the  Court.  It 
could  hardly  be  contended  that  if  the  Court  had  found  that 
the  motive  was  corru[)t,  it  would  still  have  been  at  liberty  to 
abstain  from  cancelling  the  deed.  So,  as  regards  the  power 
to  order  the  examination  of  witnesses  abroad  (a),  the  power 
was  discretionary,  not  because  the  language  was  merely 
enabling,  but  because  the  Legislature  did  not  intend  that  the 
power  should  be  exercised  wh(,'re  injustice  would  result ;  and 
the  decision  of  the  Court  that  no  such  consequence  was  likely 
to  ensue  was  a  fact  essential  to  the  exercise  of  the  power. 
So,  in  the  Bishop  of  Oxford's  case,  though  the  ])ower  was 
widely  discretionary  as  regards  the  question  whether  the 
occasion  for  its  exercise  arose,  the  Bishop  could  not  have 
declined  to  hear  the  complaint  (b)  ;  nor,  if  his  own  judicial 
discretion,  uninfluenced  by  considerations  foreign  to  his  duty, 
had  decided  that  the  occasion  for  it  had  arisen,  could  he, 
consistently  with  the  intention  of  the  Legislature,  have 
refused  to  issue  the  commission  (<?). 

In  one  sense,  indeed,  a  power  is  never  obligatory  when  the 
discretion  of  its  depositary  is  left  to  determine  whether  the 
occasion  for  its  exercise  has  arisen  ;  for  a  Supei'ior  Court 
can  only  require  him  to  exercise  his  discretion,  but  cannot 
direct  how  he  shall  exercise  it.  lint  this  may  be  recognized 
without  admitting  the  principle,  that,  contrary  to  the  rule 
laid  down  by  the  King's  Bench  and  Common  Pleas,  it  is 
ever  discretionary  to  exercise  a  power  given  for  a  public 
purpose,  in  any  case  where  the  occasion  for  its  exercise  has 
arisen. 

§  312.  The  result  seems  to  be,  that,  when  a  public  ])owcr 
for  the  public  benefit  is  conferred  in  enabling  terms,  a  duty 
is  impliedly  imposed  to  exercise  it  whenever  the  occasion 


(a)   Castclli    v.    Groom,    sup.    §  (c)  Sec   the  concluding  remiirks 

308.  of  Lord  Justice  Bramweli'.s  judg- 

(6)  Per  Lord  Blackburn,  5  App.  mcnt  in  4  Q.  B.  D.  555. 
241. 


§  312]  PERMISSIVE  WORDS.  I'iT 

ai'iscs.  These  ternis  are  then,  in  efrecl",  invariably  invested 
with  a  compulsory  force  ;  and  when  a  judicial  discretion  is 
found  to  be  involved  in  the  exercise  of  the  power,  this  is  not 
owing  to  the  circumstance  that  the  power  is  couched  in  the 
language  of  authorization  only,  and  not  of  command,  but 
because,  according  to  the  construction  of  the  Act,  it  is 
intended  by  the  Legislature  that  the  power  shall  be  exercised 
only  when  some  fact  is  found  to  exist  which  can,  from  its 
nature,  be  ascertained  only  by  the  judicial  discretion  {a). 
[Since,  therefore,  a  direction  contained  in  a  statute,  though 
couched  in  merely  permissive  language,  will  not  be  construed 
as  leaving  compliance  optional,  where  the  good  sense  of  the 
entire  enactment  requires  its  provisions  to  be  deemed  com- 
pulsory,"" it  is  evident  that  the  question  is,  in  every  case,  one 
of  intention/'  And  the  intent  is  to  be  judged  of  by  the 
purposes  of  the  statute.  Where  those  purposes  are  to  provide 
for  the  doing  of  something  for  the  sake  of  justice ;"  some- 
thing which  concerns  the  public  rights  or  interests,  and  for 
the  doing  of  which  the  public  has  a  claim  de  jure  ;°"  some- 
thing which  concerns  and  subserves  third  parties,  and  for  the 
doing  of  which  they  have  a  claim  based  upon  existing 
rights  ;"'  and,  of  course,  where  the  thing  to  be  done  concerns 
and  subserves  rights  both  of  the  public  and  of  individuals," 

(a)  It    has    been    said    that  this  §  307. 

principle  does    not    apply   to  the  ®^  See  Fowler  v.  Plrkins,  77  IlL 

construction  of  a  by-law  purport-  271  ;  Schuyler  Co.  v.   Mercer  Co., 

ing  to  authorize  its  makers  to  do  an  Old.   20;  Supervisors  v.   U.  S.,  4 

act  for  the  public  benefit.      It  was  Wall.   4^5  ;   Mason   v.   Fearson,  9 

not    to    be     supposed    that    they  How.  248 ;  Kennedy  v.  Sacramento, 

intended  to  bind    themselves    by  10  Sawyer,  29  ;  Ralslou  v.  Critten- 

their  own  by-law  :  R.  v.  Eye,  2  D.  den,  3  JMcCrary,  332  ;  ISlewburgh, 

&  R.    172  ;  per  Abbott,  C.  J.,  and  etc.,  Turnp.  Co.  v.  Miller,  5  Johns. 

Bayley,  J..  175.  Ch.  (N.    Y.)  114;  People  v.  Super- 

6'i  See   People  v.    Brooklyn,    22  visors,  11  Abb.   Pr.  (N.  Y.)  114; 

Barb.  (N.  Y.)  404.  Seiple  v.    Elizabeth.    25  N.   J.   L. 

«^  See   Supervisors  v.    U.    S.,    4  407  ;  Com'th  v.  Marshall,  3  W.  N. 

Wall.  435,  436;  Ritchie  v  Franklin  C.  (Pa.)  182;  Norwegian  Str.,  81  Pa. 

Co.,  22  Id.  67;  Thompson  v.  Car-  St.  349;  Cutler  v.  Howard,  9  Wis. 

roll,  22  How.  422  ;  Minor  v.  Mech.  309  ;  Bhxke  v.  R.  R.  Co..  39  N.  H. 

B'k,  1  Pet.  46;  Appeison  v.  Mem-  435;  Nave  v.  Nave,  7   Ind.    122; 

phis,  2  Flip.  363  ;  Kellogg  v.  Page,  Bansemer  v.  Mace,  18  Id.  27  ;  and 

44  Vt.  356.  cases  in  preceding  note. 

<^8  See  People  v.  Supervisors,  51  '^  See   Ralston  v.   Crittenden.    3 

N.  Y.  401;  Phelps  v.  Hawley,  52  McCrary,  332;  13  Fed.   Rep.  508; 

Id.    23;  Exp.    Simonson.    9  Port,  and  ca.ses  in  preceding  notes. 

(Ala.)  390;  Exp.  Banks,  28  Ala.  28;  "  See  People  v.  Supervisors,  11 

Johnson  v.  Tate,  95  N.  C.  68,  ante.  Abb.  Pr.  (N.  Y.)  114. 


42S  PKRMISSrVK  WORDS.  [^    313 

— in  all  these  cases,  an  intent  is  to  be  inferred,  that,  in  using 
:i  permissive  phrase,  the  Legislature  really  meant  to  enjoin 
an  imperative  duty.  But,  wliere  there  is  no  design  manifest 
to  do  something  required  hy  the  purposes  of  justice  ;  where 
the  public  has  no  interest  or  concern  with  the  execution  of 
the  powers  conferred ;  and  where  no  private  rights  are 
affected  by  its  failure,  there  is  no  room  for  an  inference 
that  the  Legislature,  in  using  permissive  language,  intended 
that  it  should  be  given  a  compulsory  significance,  but,  as 
will  hereafter  aj)pear,"^  it  is  even  reasonable  to  sup])0se  tliat 
in  using  language  mandatoiy  in  its  strict  grammatical  sense, 
it  attached  to  it  the  meaning  and  effect  of  permissive  words 
only. 

§  313.  [A  few  illustrations  will  serve  to  elucidate  the 
ap]">lication  of  these  ))rinei})les,  if,  indeed,  the  instances  of  its 
operation  cited  in  ])revious  sections  ma^'  not  be  deemed 
sufficient.  An  act  directing  the  treasurer  of  a  state  to  pay 
tlie  members  of  its  Legislature  in  gold  coin,  is  mandatory 
upon  him."  But  after  the  famous  legal  tender  de(;ision  of 
May,  1871,^^  an  authoi-ity  conferred  by  legislative  resolution 
upon  the  state  treasurer  to  pay  certain  bonds  maturing  in 
June,  1871,  in  coin  M-as  lield  not  to  bo  obligatory  upon  him." 
Those  who  demanded  j^ayiuent  in  coin  had  no  de  jure  claim 
to  require  it,  when  the  bonds  fell  due,  since  it  was  ruled  by 
the  highest  authority  in  the  land  that  justice  did  not  require 
the  ])ayment  of  honest  debts  in  honest  money. 

[Where  a  statute  provided  that  a  court  "may"  appoint 
three  commissioners  to  settle  a  disputed  line  between  certain 
towns;'*  or  "  may,"  before  incurring  an  expense,  submit  the 
question  to  the  people,"  the  word  "  may  "  was  clearly  intended 
to  mean  ''  shall  ;"  for,  in  each  case,  the  ])nl)lic  interest  was 
involved,  and  neither  could,  in  the  one,  the  towns  agree  to 
the  appointment  of  a  lesser  number  of  commissioners,  nor 
in  the  other,  the  couit  dispense*   with   a  ])()])ular  vote.      But 

""•^  Sec  post,  §§  310,  4'51  ct  s('(i.  i(!versing  llcpbuin   v.  Griswold,  8 

"  People  v';   Boveridge,    m   111.  Id.  003. 
307  ;  provided  the  coin  was  iu  tlic         ''^  Kellogg  v.  Page;,  44  Vl.  350. 
treasury    when  the  warruuts  were         '"   Monmouth  v.   Leeds,  70   Me. 

presented.  28. 

■J'  Knox  V.   Lee,   12  Wall.   457.  "   Stcines   v.    Fratddin    Co.,   48 

Mo.  107. 


§314] 


PERMISSIVE  WORDS. 


429 


an  act  whicli  provided  that  it  might  be  hiwfnl  to  deliver  tlie 
tax-list  to  a  certain  officer,  a  previous  act  having  made  it 
deliverable  to  another,  for  collection,  was  not  deemed  of  such 
consequence  to  the  public,  or  to  the  individuals  who  had  to- 
pay  the  taxes,  as  to  require  a  construction  which  would  make 
"  may  "  equivalent  to  "must,"  but  to  leave  the  matter  resting 
in  sound  discretion.'* 

§  314.  [An  act  authorizing  the  officers  of  a  city  to  levy  an 
annual  tax  of  one  per  centum,  part  of  which  was  to  be  set 
aside  to  pay  the  bonds  of  the  funded  debt  of  the  municipality,, 
was  clearly  mandatory."  It  subserved,  not  only  the  public 
interest,  but  directly  the  subsisting  rights  of  third  persons,  the 
holder  of  bonds.'"  But  an  act  authorizing  the  taking  oi  land 
for  a  park  in  Boston,  and  laying  out  and  iniproving'the  same, 
etc.,  but  providing  that  there  should  be  no  expenditure  of 
money  until  an  appropriation  therefor  was  made  by  a  two- 
thirds  vote  of  each  branch  of  councils,  and  permitting  an  issue 
of  bonds  to  the  extent  of  $500,000  each  year,  etc.,— whilst  the 
public  and  even  individual  citizens  and  property  holders 
might,  in  a  certain  sense,  be  said  to  be  interested  in  the  execu- 
tion of  the  power,  did  not  provide  for  anything  that  any  per- 
son had  a  subsisting  right  to  demand  should  be  done,  but  was 
held  to  confer  a  discretion,'*  So,  in  the  case  of  an  act  author- 
izing the  supervisors  of  a  county  co  contract  and  appropriate 
money  for  a  map,  even  though  it  made  it  their  duty  to  con- 
tract, that  word  in  itself  and  talcjeii  together  with  an  absence  of 
specification,  by  the  act,  of  the  size,  etc.,  being  held  to  imply 
a  discretion.*'  x\nd  again,  where  a  statute  provides  that  a 
trial  "may"  be  removed  to  another  county,  on  the  applica- 
tion of  the  defendant  duly  supported  by  affidavit,  or  where'' 
a  statute  merely  permits  the  granting  of  licenses,'*  the  permis- 
sive words  cannot  be  construed  as  intended  to  be  mandatory  ;, 
for  the  statutes  are  in  tlio  line,  not  of  sustaining  an  existing, 

^8Sciple  V.   Elizabeth,  27  K  J.  ^i  Boston,  etc.,    Co.   v.    Boston, 

L.  407.     Sec  §  31G.  143  Mass.  546. 

"   Kennedy  v.   Sacramento,    10  *'^   Bowers    v.    Sonoma   Co.,    33 

Sawyer,  29.  Cal.  60. 

80   Sec.    also,    Supervisors  v.  U.  "^  E.\p.    Banks,  28  Ala.  28 ;  see, 

S..4  Wall.  435;   Galena  v.  Amy,  also,    ilealy    v.    Dettra,     (Pa.)    7 

5  Id.  705  ;   Ralston  v.  Crittenden,  Centr.  Rep.  168. 

3  McCrary,  332.  «"'  State  v.  Holt  Co.   Ct.,  39  Mo.. 

521. 


430  PKRMISSIVK  WOKDs.  L§'^1-^ 

but  of  el■(';ltiIl^•  ;i  new,  rii;"ht,  and  for  the  latter  piirjiose,  new 
rii^hts  not  being  created  by  implication,  an  intention  to  use 
permissive  lani>;uage  in  a  mandatory  sense  will  not  be  pre- 
sumed." It  is  l)nt  a  corollary  of  this  pi'inci})le,  that  one  who 
lias  no  interest  in  a  provision,  permissive  in  form,  cannot 
insist  upon  its  performance  ;  as,  <?,  (/.,  under  a  statute  relating 
to  foreclosure  sales,  and  providing  that  such  sales  "  may"  be 
of  parcels  "  so  that  the  whole  amount  may  be  realized,"  it  was 
held  that  the  mortgagor,  having  no  interest  in  the  fund  which 
was  to  be  raised  by  the  sale,  and  for  the  benefit  of  which  the 
provision  was  intended,  had  no  right  to  have  it  enforced.*"] 

§  315.  Eflfect  of  Express  Reference  to  Discretion. — In  cases  m 
which,  upon  the  principles  stated,  permissive  words  are  to 
be  read  as  mandatory,  the  exercise  of  the  power  is  not  made 
less  imperative  by  express  reference  to  the  discretion  of  the 
authorized  person.  The  duty  of  issuing  a  summons  (a),  or  of 
examining  the  churchwarden's  accounts  {h),  was  as  obligatory 
under  the  statute  which  empowered  the  justices  to  issue  it  or 
to  examine  them,  "  if  they  should  so  think  fit,"  as  it  would 
have  been  if  this  expression  had  been  omitted.  Where  the 
judgment  creditor  of  a  company  "  might  "  have  execution 
against  any  individual  shareholder  of  it,  if  he  failed  after  due 
diligence  to  obtain  satisfaction  of  his  debt  from  the  c<)mj)any, 
it  was  held  by  the  Common  Pleas  that  there  was  no  discretion 
to  withhold  this  remedy  from  him  in  any  case  in  which  the 
Court  was  satisfied  that  the  specific  facts  indicated  by  the 
statute  existed — viz.,  that  the  debt  was  unpaid,  that  due 
endeavors  had  been  made,  and  had  failed,  to  put  in  force 
tjie  execution  against  the  company  (<?),  and,  it  nuiy  be  added, 

*^  Exp.  Banks,  supra  ;   State   v.  and  upon  the  sole  reason  that  the 

Holt  Co.  Ct.,  supra;  and  see  Exp.  executor  resided  in  another  state; 

Simonton,    9    Port.    (Ala.)    390;  a  circumstance  which  the  act  was 

Mitchell    V.    Duncan,    7  Fla.    13.  held   not  to  make    a    ground    for 

Seii  Cutler  v.  Howard,  9  Wis.  309,  removal.      See  the  stric;tures  ui)on 

where,  under  a  statute  that  pro-  this  case  in  Sedgw.,  p.  376,  note. 

vided    that    the     court      "may"  ^^  Bansemer  v.  Mace,  18  Ind.  37. 

remove    an    executor    for  certain  (a)  R.  v.  Adamson,  sup.  §  300. 

specified  causes,  the  court  refused  (b)   li.     v.    Cambridge,    sup.    § 

to   exercise  the  discretion  merely  300. 

upon   tlie  application  of  a  legatee  (c)  7  «&  8  Vict.  c.  110;  Morisse  v. 

wlio,    it  was  held,    could   no't    be  British  Bank,  1  C.  B.  N.  S.  07; 

bciu'lited  by,  and  had  no  interest  Hill  v.  London  &  Co.   Assur.  Co., 
in,   the  removal  of  the  executor, 


I  316]  permissivp:  words.  431 

that  tlie  creditor  had  done  nothing  to  disentitle  liim  to  exe- 
cution against  the  sharcholdei-  (a)  ;  although  tlie  statute  not 
on!}'  directed  that  the  leave  of  the  Court  was  to  be  asked  for 
the  execution,  but  provided  that  it  "  should  be  lawful  "  for 
the  Court  to  grant  or  refuse  the  application  for  it,  and  "to 
make  such  order  as  it  might  see  fit."  Another  faniiliar 
instance  may  be  found  in  tlie  case  of  a  distress  warrant  to 
enforce  a  poor  rate.  It  is  well  known  that  in  every  case 
where  certain  specific  facts  are  proved,  viz.,  that  a  rate, 
valid  on  its  face,  was  made  by  a  competent  autliority,  that 
the  rated  land  is  in  the  district  and  in  the  occupation  of  tho 
defaulter,  and  that  the  latter  has  been  summoned  and  has 
not  paid,  the  justices  have  no  option  to  refuse  the  warrant, 
though  the  statute  says  only  that  they  "  may  "  issue  it  "  if 
they  think  fit"  (5).  In  all  such  cases  they  must  exercise  the 
power ;  they  must  "  think  fit "  to  do  so  whenever  the  occa- 
sion for  it  has  arisen.  In  America,  where  it  was  enacted 
that  city  councils  "might,  if  deemed  advisable  "  (c),  or  even 
"  might,  if  they  believed  that  the  public  good  and  the  best 
interests  of  the  city  required  it "  (c?),  levy  a  special  tax  to 
be  expended  in  the  liquidation  of  their  debts,  the  Supreme 
Court  issued  a  mandamus  to  levy  the  tax  where  it  was 
proved  that  a  debt  existed,  and  that  there  were  no  other 
means  in  possession  or  prospect  for  their  payment ;  holding 
that  the  discretion  of  the  Town  Councils  was  limited  by 
their  duty,  and  could  not,  consistently  with  the  rules  of  law 
{e),  "  be  resolved  in  the  negative  "  (/*). 

§  316.  [It  may  be  added,  that,  where  the  grounds  for 
believing  that  the  Legislature  intended  to  give  to  its  lan- 
guage a  compulsory,  rather  than  a  directory,  efflca(;y,  are 

1  H.  &  N.  398  ;  comp.  Shrimpton  (d)  Galena  v.  Amy,  5  Wallace, 

V.  Sidmoutb,  etc.,  R.  Co.,  L.  11.  3  705. 

C.  P.  80,  decided  on  the  8  Vict,  c  (e)  Adverting  to  R.   v.  Barlow 

16.  sup.  §  306. 

(a)  Scott  V.  Uxbridge,   etc.,   R,  (/)  In  R.     v.  Lancashire    JJ., 

Co.,  L.  R.  1  C.  P.  596.  sup.      t^  306.     a      similar      view 

(J))  R.  V.   Finnis,  28  L.  J.  M.  C.  seems  to  have  been  taken  of  the 

201  ;  R.  V.  Boteler,  33  L.  J.  M.  C.  45  &  56   Vict.  c.   34,  s.  1,  which 

101.      See.  also,  R.  v.  Cambridge,  enacts  that    licensing    magistrates 

and  R.  v.  Adamson,  sup.  t^  306.  "shall  be  at  liberty,  in  tlicit  free 

(c)     Supervisors    v.      IT.    S.,    4  and    unqualified    discretion,"     to 

Wallace,  435.  grant  or  refuse  beer  licenses. 


432  CORRECTION   ol     llilioljs.  [§  3  IT 

wanting,  tlie  word  "  sliall  "  may  be  coiibtrued  as  being  simply 
permissive.*'  Thus,  where  an  act  provided  that  the  assessment 
roll  "  shall  "  be  returned  within  a  certain  number  of  days, 
it  was  held,  that,  no  public  or  private  right  being  impaired 
liy  such  construction,  the  provision  might  be  regarded  as 
directory  only.**  And  it  is  said,  that,  as  against  the  Govern- 
ment, the  word  "  shall,"  unless  a  contrary  intent  appears 
from  the  statute,  is  merely  permissive.""] 

§  317.  Correction  of  Omissions  and  Erroneous  Insertions. — An 
omission  which  the  context  shows  with  reasonable  certainty 
to  have  been  unintcndml  may  be  supplied,  at  least  in  enact- 
ments which  are  construed  beneficially,  as  distinguished 
from  strictly.  Thus,  when  the  33rd  section  of  the  tinus  and 
Recoveries  Act  (3  &  4  Will.  4,  c.  74),  in  i)roviding  that  if 
the  protector  of  a  settlement  should  be  (I)  a  lunatic,  or  {'2) 
convicted  of  felony,  or  (3)  an  infant,  the  Court  of  Chancery 
should  be  the  protector  in  lieu  of  tlie  lunatic  or  the  infant, 
omitted  the  case  of  the  convict  of  felony,  it  was  held  by 
Lord  Lyndhurst  that  the  omission  might  be  supplied,  in 
order  to  give  effect  to  the  manifest  intention.  AVithout  it, 
the  mention  of  the  case  of  felony,  in  the  first  part  of  the 
sentence,  was  insensible,  and  it  necessarily  implied  the  miss- 
ing words  (a).  So,  where  a  statute  enacted  that  suits 
"against"' an  association  should  be  brought  in  the  district 
where  it  was  established,  with(jut  making  any  provision  for 
suits  "  by  "  the  association  ;  but  an  earlier  Act  had  in  a  sim- 
ilar clause  provided  for  suits  both  by  and  against ;  the 
Supreme  Court  of  the  United  States  held  that  the  omission  ' 
in  the  later  Act  was  accidental,  and  might   be  supplied   {0). 

»'  Fowler  v.  Pirkins.  77  111.  271.  Greenwood,  L.   R.  2  Ch.  D.   375  ; 

88  Wlieeler  v.    Chicago,    24    111.  lie  Iledfern,  6  Ch.  D.  133,  47  L.  J. 

105.      See   §  313.     Compare,  with  Ch.  17. 

the  foregoing  discussion,  that  of  (b)  Kennedy  v.   Gibson,  8  Wal- 

mandatoiy    and  directory  provis-  lace,    491.     Comp.      Hancock    v. 

ions,  post,  §§  431-440.  Lablache,    3  C.  P.  D.  107.     [But 

^^  R.  R.  Co.   V.   Hecht,  95  U.  S.  the   necessity  of  great   caution  in 

168,  170.  the   supplying  of   omissions  must 

(«)  lie  Wainwrigiit,  1  Phil.  258.  again  be  adverled  to.     In  a  recent 

Sec,  also,   in  deeds,  Spyve  v.  Top-  decision,   referred  to  above,  >j  295, 

ham,  3  East,  115;  Dent  v.  Clayton,  note,  the  Court  of  Appeals  of  New 

33  L.  J.  Ch.  503  ;  Wilson  v.    Wil-  York  said  :  "  If  [the  Legislature] 

son,  5  II.    L.    C.  40,  23  L.  J.   Ch.  have  failed  to  insert  such  provis- 

607;  and  in  wills.  Greenwood    v.  ions  in  the  law  as  will  accomplislL 


§  318]  CORKK.CTIl»N  OF   KUUoRS.  488 

jSo  aii^ain,  where  the  lirst  section  of  ;iii  act  authorized  an 
aqueduct  company  to  take  and  use  the  water  of  two  pondS' 
and  of  a  certain  lake,  and  the  lifth  section  provided  that 
nothing  in  the  act  should  be  so  construed  as  to  autliorize  the 
company  "  to  raise  the  water  of  any  of  said  ponds  above 
high  water  mark,"  etc.,  it  was  hold  that  the  restriction 
applied  as  well  to  the  lake  as  to  the  ponds.*"  And 
conversely,  if,  from  all  sources  of  interpretation,  it. 
appears  that  a  provision  was  inadvertently  inserted  in  a  stat- 
ute, it  may  be  disregarded."  Thus,  the  words  "or  both 
such  fine  and  imprisomnent  at  the  discretion  of  the  Court," 
which  had  been  cut  out  of  the  original  act  by  a  subsequent 
one,  but  were  erroneously  re-instated  in  the  reproduction  of 
the  act  in  a  section  of  a  revision  of  statutes,  relating  to 
assault  and  battery,  were  treated  as  inoperative."  And  it  is 
said  that  the  fact  that  a  code  is  declared  to  be  embodied  in 
the  law,  does  not  give  the  effect  of  law  to  inaccuracies  that 
may  have  crept  into  the  book.*^  So,  where  two  acts,  the 
■one  passed  in  1867,  declaring  bills  of  exchange  and  promis- 
sory notes  payable  at  a  bank  or  private  banking  house  to  be 
governed  by  the  commercial  law  ;  the  other,  passed  in  1873, 
declaring  bills  of  exchange  and  promissory  note  payable  at 
a  bank  or  banking  house,  or  at  a  certain  place  of  payment 
therein  designated  to  be  so  governed,  were  inserted  in  a 
code,  under  §  2100  and  §  2074  respectively,  it  was  held  that 
the  insertion  of  the  earlier  act  must  be  considered  as  an 
oversight  on  the  part  of  the  codifiers,  and  that  the  section 
embodying  the  act  of  1873  must  be  held  to  repeal  the  other 
so  far  as  there  was  any  conflict  between  them."*] 

§   818.    Elliptical    Sentences.        Transposition    of   Words,    etc 

The  sixth  section  of  Lord  Tenterden's  Act  furnishes  another 
example  of  clerical  neglect,  which  was  treated  in  the  same 

the  result  intended,  their  omission  beyond,  "  we  have  no  doubt,"  etc. 

cannot  be   remedied  by  construe-  ^'  Pond  v.  Maddox,  38  Cal.  572. 

tion,   and   the   law    must    to   that  See,  also.  Jones  v.  Ilulchinson,  43 

extent  be  considered  defective  and  Ala.    721;   Com'th  v.   Jacksou,    5 

inoperative  :"  Furey  v.  Gravesend,  Bush  (Ky.)  GSO. 

104  N.  Y.  405;  6  Centr.  Rep.  501,  ^^  State  v.  Lee,  37  Iowa,  403. 

503.]  93  Atlanta  v.  Gas  Light  Co.,  71 

90  Brickett  v.  Haverhill  Aqueduct,  Ga.  lOG. 

142  Mass.  394.     No  reason  is  given  s-*  ]\Iobile  Sav.  B'k  v.  Patty,  16. 

by  the  court  for  this  construction,  Fed.  Hep.  751. 

28 


434 


OOEREOTION  OF  ERRORS. 


[§318 


spirit.  It  enacts  that  no  action  shall  be  brought  in  respect 
of  a  representation  made  by  one  person  concerning  the  con- 
duct or  credit  of  another,  to  the  intent  that  the  latter  "  may 
obtain  credit,  goods,  or  money  ujpon^''  ....  unless  the  re- 
presentation was  in  writing.  The  text  is  clearly  imperfect. 
Lord  Abinger,  while  deeming  any  conjectural  transposition 
of  the  words  inadmissible,  held  that  the  word  "  upon  "  n)ust 
be  rejected  as  nonsensical;  but  Baron  Parke  considered  that 
the  Court  was  at  liberty  either,  by  transportation,  to  read  the 
passage  "  may  obtain  goods  or  money  on  credit,"  or  to  inter- 
polate after  "upon"  tlie  words  ''such  rciiresentations"  (a). 
[A  transposition  of  words  is,  indeed,  to  be  made  wherever  the 
intention  of  the  Legislature  and  the  context  require  such  a 
change."  Thus  "  current  expenses  of  the  year  "  was  read 
"expenses  of  the  current  year;"""  and  in  another  case  a 
clause  in  a  section  of  revised  statutes  was  construed  as  if  a 
proviso  found  in  the  middle  of  the  clause  were  placed  at  the 
end,"  and  again,  in  construing  a  statute  so  as  to  make  it  con- 
form to  the  legislative  intent,  it  was  held  that  a  clause  which 
was  included  in  the  second  section  should  be  read  as  if 
included  in  the  first,  and  as  qualifying  the  provisions  of  the 
latter."'] 


(a)  Lyde  v.  Bamaid,  1  M.  &  W. 
101,  llo.  lu  slLiUitcs  governed  by 
the  principle  of  strict conslrucl ion, 
such  emendations  liave  been 
rei'used:  See  Undcihill  v.  Long- 
ridge,  etc.,  inf.,  §  B86. 

9^  jMallbews  v.  Com'tb,  18  Gratt. 
(Va.)  !J89. 

96  Babcock  v.  Goodricli,  47  Cal. 
488.  ^ 

9'  Waters  V.  Campbell,  4  Sawyer, 
121. 

98  State  V.  Turnp.  Co.,  16  Ohio 
Si.  808.  Comp.  however,  Poor  v. 
Considine,  G  AVall.  458,  ante,  §  13. 
The  power  of  the  court  to  transfer 
clauses  in  a  statute,  the  grounds 
upon  which,  and  tbe  methods  by 
which,  it  will  ije  exercised  are  well 
illustrated  by  two  cases,  one  arising 
iu  Virginia,  and  already  referred 
to,  tbe  other  decided  in  Nebraska. 
In  the  former  case,  Matthews  v. 
Com'th.  18  Gratt.  (Va.)  989,  it  was 
3aid  that  a  construction  is  to  be  put 
iipnn  a  statute,  wbicb  conforms  to 


its  obvious  intention,  though  tbe 
collocation  of  the  different  branches 
of  a  provision  are,  by  mistake,  so 
arranged  as  to  lead  atlirst  blush  to 
a  different  conclusion.  The  inten- 
tion having  been  found  (1)  by  the 
reason  of  the  thing,  (2)  by  tiie 
grammatical  const  ruction  of  the 
section  as  it  stood,  showing  that  a 
certain  clau.se  should  follow, 
instead  of  preceding,  another,  and 
(3)  by  the  context,  let'erence  was 
made  to  th(!  legislative  journals  to 
verify  the  consi ruction  arrived  at 
by  a  transposition  of  the  clauses  in 
accordance  wiih  the  intention  thus 
ascertained,  when  it  was  foiind 
that  an  amendment  by  in-eiiing 
certain  woids  after  a  designated 
word  in  the  original  act  had  been 
made  without  regard  to  the  fact 
that  certain  other  words  had  been 
already  iiuserted  by  a  previous 
amenilmcnl.  In  the  other  case. 
State  v.  Forney,  21  Neb.  'Ji:?,  226 
et  .seq.,  the  court,  in  construing  an 


§  319J 


CORRECTION    OF    KRRORS. 


435 


§  319.  Clerical  Errors. — Clerical  errors  may  be  read  as 
amended  {a).  Thus,  in  the  provision  of  the  Metropolitan 
Local  Management-  Act,  that  no  road  shall  be  formed  as  a 
street  for  carriage  traffic  unless  widened  to  forty  feet,  or  un- 
less such  street  shall  be  open  at  both  ends,  the  woi'd  "or" 
was  read  "  nor,"  for  the  manifest  intention  was  not 
that  one  of  the  two,  but  that  both  conditions  shoidd  be 
complied  with ;  that  is,  that  the  street  should  not  only  be 
forty  feet  wide,  but  also  be  open  at  both  ends  (J).  [In  an  act 
incorporating  a  railway  company,  and  prescribing  a  method 
by  which  the  same  could  acquire  the  title  to  lands,  where  no 
agreement  could  be  arrived  at  amicably,  by  proceedings  in 
the  court  of  common  pleas  "  upon  final  judgment  or  appeal 
therefrom,"  it  was  held,  that,  both  on  tliegroniul  of  absurdity 
there  being  no  such  thing  as  an  appeal  allowed  from  a  linal 
judgment,  and  by  analogy  with  former  i-ailroad  acts,  "or" 
should  be  read  "on.'"'  So  too,  "acts"  was  read  "act."'"* 
"  Venire  "  was  read  "  venue,"  in  a  statute  declaring  that  the 


act  said  that  ;i  bare  inspection  of 
the  4lli  section,  or  that  part  of  it 
which  preceded  the  proviso,  would 
satisfy  anyone  that  the  Ijcgislaturc 
never  intended  to  pass  it  in  that 
form  ;  tiiat  au  examination  of  i5  •'>, 
as  printed,  would  show  that  §  4, 
as  originally  drafted,  contained 
certain  words  of  §  5  as  printed  ; 
that  the  records  disclosed  the  fact 
that  such  was  the  form  of  the  bill 
as  introduced,  and  as  it  stood  until 
it  came  from  the  hands  of  the 
printer,  in  the  form  in  which  it 
was  liually  passed  and  stood  ui>on 
the  statute  book  ;  that  the  portion 
of  §  4  coming  just  before  tiie  pro- 
viso meant  nothing  at  all,  as  it 
stood  ;  whilst,  read  in  connection 
wiih  the  portion  of  §  5  referred  to, 
it  showed  a  certain  purpose  ;  and 
that  it  must  accordinglj'-  be  so 
read. 

(a)  As  where,  for  instance,  an 
Act  refers  to  another  by  the  title 
and  date,  and  mistakes  the  latter: 
2  Inst.  290  ;  Anon.  Skinn.  110  ; 
R.  v.  Wilcock,  7  Q.  B.  317;  Ee 
Boothrovd,  15  M.  &  W.  1.  [See 
ante,  §  y02.] 

{b)  Metrop.  Board  v.  Steed,  8  Q. 
B.  D.  445,  61  L.  J.  22. 


93  Levering  v.  11.  R.  Co.,  8 
Watts  &  S.  (Pa.)  459,  4G3.  Con- 
versel}'  "on"  was  read  "or," 
as  a  clear  mistake,  in  Gould  v. 
Wise,  18  Nov.  253.  A  clerical 
error  in  the  title  of  an  act,  made 
in  engrossing,  after  passage,  but 
T)efore  approval,  was  held  not  to 
invaliilate  the  statute,  if,  upon  the 
whole,  the  effect  was  not  to  mis- 
lead :  People  v.  Onondaga,  16 
Mich.  234,  Coole\',  J.,  diss.  The 
printed  act  may  be  corrected  by 
the  enrolled  bill  on  tile  in  the  state 
department  :  Reed  v.  Clark,  3 
McLean,  480.  But  .^it  is  said  that 
an  act  as  approved  by  the  Execu- 
tive must  be  ileemed  the  law,  not- 
withstanding the  apparent  omission 
of  some  provisions  indicated  by 
the  legislative  journals:  State  v. 
Liedke,  9  Neb.  463. 

100  Jocelvn  v.  Barrett,  18  Ind. 
128.  In  Hill  V.  Williams,  14  Serg. 
&  R.  (Pa.)  287,  289,  it  is  said  that 
"persons"  is  often  applicable  to 
one  i^irty  ;  for  instance,  a  minor 
may  have  several  guardians,  or 
several  masters,  who  are  in  partner- 
ship ;  in  such  cases,  for  certain 
purposes,  all  the  guardians  or  both 
the  masters,  constitute  one  party. 


430 


OOUUICCTIoN     (.1      1, 


[§  ^1I>- 


"  venire  "  in  actions  against  railroad  companies  slionld  be  laid 
in  tlie  count}'  in  wliicb  the  track  was  IiKvitcd.""  "  Dennis 
Mills"  was  held  a  misprint  for  "  Diinirs  Mill."'"'  "  South," 
in  a  statute  delining  the  boundaries  of  a  county,  being  clearly 
a  mistake  for  "  north,"  was  so  read  ;""  and  "  Louis  Mankel," 
for  "Lewis  Meidvcl ; '""'  "final  judgments"  for  "penal 
judgments;"'"*  "ad  respondendum"  for  "ad  satisfacien- 
dum;"'"" and  "  proviso  to  article  411"  for  "provisions  to 
article  411."'"'  The  date  "  first  day  of  July  "  specified  by  an 
act  as  the  day  from  which  all  suits  then  pending  should  be 
subject  to  appeal,  according  to  a  presci'ib(^d  mode,  was  read 
as  meaning  the  first  Moiulay  in  July  ;'"^  and  in  an  act  ]iroviding 
that  a  Circuit  Court  in  a  certain  district  should  be  held  the 
fifth  Monday  after  the  fifth  Monday  in  Januaiy  and  July,  it 
was  held  that  the  second  "  fifth  "  should  be  read  "  fourth."'"" 
Whei-e,  in  a  statute  describing  the  boundaries  of  a  county, 
an  error  occurred  which  would  have  made  the  count}'  to 
consist  of  two  detached  pieces,  it  was  corrected  by  the  court ;"" 
and,  in  a  similar  statute,  where  a  misdescription  resulted  from 
the  ..use  of  tlie  sign  of  a  degree,  instead  of  a  decimal  point 
between  figures,  whereby  the  calls  would  have  become 
meaningless,  the  sign  was  treated  as  a  decimal  point.*"  An 
act  being,  by  clear  mistake  entitled  a  supplement  to  the  act 
of  27  February,  1867,  but  intended  to  bo  a  supplement  to 
that  of  13  April,  1867,  was  to  be  read,  with  the  effect  of  not 


'o>  Graham  v.  R.  R.  Co.,  64  N. 
C.  631. 

'"•^  Lindsley  v.  Williams,  20  N. 
J.  Eq.  93. 

'"*  Palms  V.  Shawano  Co.,  61 
Wis.  211. 

"'■'  Mankel  v.  U.  S.,  19  Ct.  of  CI. 
295. 

105  Moody  V.  Stephenson,  1  Minn. 
401. 

106  People  V.  Hoffman,  97  111. 
234  :  so  held  on  petition  for  habeas 
corpus,  the  arrest  having  been 
made  under  the  statute  on  a  capias 
ad  respondendum. 

'01  Chambers  v.  Stale,  25  Tex. 
307;  Ilearu  v.  State,  Id.  336: 
there  being  but  one  provision  in 
the  article  except  that  contained 
in  the  proviso,  and  the  act  in  which 
the  mistake  occurred  being  an  act 


amending  the  penal  code. 

103  Bureh  v.  Newbury,  10  N.  Y. 
374. 

109  Haney  v.  State,  34  Ark.  263, 
the  court  declaring,  tliat,  where  it 
is  apparent  tliat  the  Legislature  did 
not  intend  to  use  a  particular  word 
occurring  in  a  statute;,  and  it  is 
further  apparent  what  word  it  did 
intend,  the  court  will  correct  the 
mistake  by  substituting  the  latter, 
and  finding  from  other  and  similar 
provisions  in  the  statute  that  the 
"fourth,"  and  not  the  "fifth" 
Mondav  was  intended. 

110  Reynolds  v.  Holland,  35 
Ark.  56  ;  thcjugh  it  was  said  that  a 
countv  might  be  created  of  such  a 
kind:' lb. 

"1  Brown  v.  Ilamletl,  8  Lea 
(Teuu.)  732. 


§  320]  EQUITABLF,    CONSTRUCTION.  437 

reviving  the  local  act  of  27  February,  18G7,  which  had  been 
repealed  by  the  general  act  of  13  April,  18G7.'"  So,  where 
there  was  a  mistake  in  the  description  of  a  street  in  an 
ordinance  for  laying  it  out,  the  street  being  sufficiently  iden- 
tified, the  error  was  read  corrected.'" 

[In  fact,  a  mistake  apparent  on  the  face  of  an  act,  which 
may  be  corrected  by  other  language  of  the  act,  is  never 
fatal.'"  In  all  snch  cases,  it  may,  with  propriety,  be  said 
that  the  context  rectifies  the  error,'"  and  it  is  not  the  Court 
that  assumes  to  correct  the  Legislature.]  It  has,  indeed, 
been  asserted  that  no  modification  of  the  language  of  a  statute 
is  ever  allowable  in  construction,  except  to  avoid  an  absurdity 
which  appears  to  be  so,  not  to  the  mind  of  the  expositor 
merely,  but  to  that  of  the  Legislature  ;  that  is,  wlien  it  takes 
the  form  of  a  repugnancy  (a) ;  [that  words  are  never  to  be 
supplied  or  changed,  except  to  effect  a  meaning  clearly  shown 
by  other  parts  of  the  statutes — to  carry  out  an  intention 
son^ewhere  expressed.""]  In  such  cases,  the  Legislature  shows 
in  one  passage  that  it  did  not  mean  what  its  words  signify 
in  another;  and  a  modification  is  therefore  called  for  and 
sanctioned  beforehand,  as  it  were,  by  the  author.  But  the 
authorities  do  not  appear  to  support  this  restricted  view. 
They  would  seem  rather  to  establish  that  the  judicial  inter- 
preter may  deal  with  careless  and  inaccurate  words  and 
phrases  in  the  same  spirit  as  a  critic  deals  with  an  obscure 
or  corrupt  text,  when  satisfied,  on  solid  grounds  {h),  from 
the  context  or  history  of  the  enactment,  or  from  the  injustice, 
inconvenience,  or  absurdity  of  the  consequences  to  which  it 
would  lead,  that  the  language  thus  treated  does  not  really 
express  the  intention,  and  that  his  amendment  probably 
does. 

§   320.    Equitable,   in  the  Sense  of  Liberal,  Construction — The 

"2  Keller  v.   Com'th,  71  Pa.  St.  29  L.  J.  64  ;  Abel  v.  Lee.  L.  R.  6 

413.  C.     P.     371  :     Chrislonherson     v. 

"3  State  V.  Orange,  33  N.  J  L.  Lotiiiga,  15  C.  B.  N.  S.  809 ;  o3  L. 

49.                             "  J.   871  ;  per  Brelt,  J.,  in  Boon  v. 

>'•»  Blanchard    v.     Spraguc,     3  Howard,  L.  R.  9  C  P.  305. 

Snmn.  279.  ""  Lane  v.    Sciiomp,    20  N.   J. 

"5  See  Com'th  v.   MarshaJ,  69  Eq.  82. 

Pa.  St.  328.  332.  (b)  Comp.  Green  v.  "Wood,  sup. 

{a)  Per  Willes,  J.,  in  Motteram  23,  24,  and  cases  cited,  §  21. 
y.  E.  C.  R.  Co.,  7  C.  B.  J^.  S.  558, 


438  EQUITABLE    CONSTRUCTION.  [§  320 

practice  of  modifj'ing  tlic  language,  and  controlling  the 
ojicration  of  enactu)euts,  however,  was  formerly  carried  to 
still  greater  lengths.  It  used  to  be  laid  down  that  a  remedial 
statute  should  receive  an  equitable  construction  ;  so  that 
cases  out  of  its  letter  should,  if  within  the  general  object  or 
mischief  of  the  Act,  be  brought  within  the  remedy  which  it 
provided  (a). 

It  is  to  be  observed,  indeed,  that  this  expression  is  often 
used  in  the  older  authorities  in  a  different  sense.  Lord 
Mansheld  said  that  equity  was  synonymous  with  the  intention, 
of  the  Legislature  {h);  and  in  this  sense  an  equitable  con- 
struction is  plainly  free  from  objection  ;  [what  is  within  the 
plain  intention  of  the  makers  of  a  statute,  not  falling  under 
the  rule  of  strict  construction,'"  being  as  mucli  within  the 
statute,  as  if  it  were  within  its  letter,"*  and  that  Avhich  is 
plainly  not  within  the  intention  of  a  statute,  remaining  un- 
affected by  it,  although  the  letter  of  the  law,  disregarding 
the  limits  of  its  scope  and  oi)ject,  would  prima  facie  include 
it.*"]  The  "  equitable  "  construction,  which  included  uses 
within  the  Statute  de  donis,  though  that  enactnient  spoke 
only  of  "  lands  and  tenements,"  and  may  have  originally 
contemplated  only  common  law  estates  (c),  and  which 
applied  the  2  Hen.  5,  c.  3  (requiring  that  a  juror  should 
have  "lands"  worth  forty  shillings),  to  the  cestui  que  use^ 
and  not  to  the  feoffee,  when  the  legal  estate  was  in  the  latter 
(d),  would  seem  to  fall  within  the  now  recognized  ordinary 
rules  of  construction.  The  4  Ed.  3,  c.  7,  which  gave  execu- 
tors an  action  against  trespassers  for  a  wrong  done  to  their 
testator,  was  said  to  have  given  them  also  an  action  on  the 
case,  by  "  the  equity  "  of  the  statute  (<?) ;  but  the  decision 
was  strictly  on  the  letter  of  the  Act.  It  turned  on  the  con- 
«truction  of  the  word  "trespass,"  which  was  held  to  jnean  a 

(a)  Co.  Litt.  24b  ;  Bac.  Ab.  Stat-  519  ;  i.  e.,  if  it  comes  within  tiie 

utc  I.  6;   Com.   Diff.    Pnrli;imeiit,  .ww<J,  not  merely -witliin  n,  U/ce  vca- 

R.  ly.      [Ilersha  v.  Brcnnciiian,  G  .son:   U.    S.  v.    Freeman,  3  How. 

Serg.  &  1{.  (Pa.)  2  ;  Lcbii^li  Bridge  rtMi,  5G5,  and  see  Jacob  v.  U.  S.,  1 

Co.  V.  Coal,  etc. ,  Co. ,  4  Kawle  (Pa.)  Brock,  Marsh.  520. 

9.]  ""See  ante,  §§  73  ct    seq.,  113 

(fj)  R.  V.  Williams.  1  W.  BI.  95.  et  seq. 

"'  See  Melody  v.  Reab,  4  Mass.  (c)  Corbet's  Case,  1  Rep.  88. 

471.  (d)  Co.  Litt.  272b. 

""  Riddick   v.    Walsh,    15    Mo.  (<?)  Russell  v.  Prat,  Leon.  194. 


§  321]  EQUITABLE    CONSTKUCTION.  439 

wrong  done  generally,  and  of  "  trespassers,"  which  was  held 
to  mean  wrongdoers  {a).  The  decision  that  the  Statute  of 
Gloucester,  c.  5  (which  gives  the  action  of  waste  against 
lessees  for  life,  or  "  for  years,"  to  recover  the  wasted  place 
and  treble  damages)  reached  ''  by  equity"  a  tenant  for  one 
j'ear  and  even  for  half  a  year,  was  apparently  of  a  similar 
chai-acter  (h).  So,  when  it  is  said  that  it  is  on  "the  equity," 
or  "  equitable  construction  "  of  the  Statute  2  W.  &  M.  c.  5 
(which  empowers  a  landlord  to  sell  for  the  best  price  the 
goods  which  he  has  distrained  for  ari-ears  of  rent,  if  the  ten- 
ant does  not  replevy  in  live  days),  that  an  action  lies  against 
the  landlord  who  sells  before  the  expiration  of  five  days, 
though  after  impounding  (c),  oi*  after  a  tender  of  the  rent 
and  expenses  within  that  time  (d),  or  for  less  than  the  best 
price  (e) ;  no  more  seems  to  have  been  intended  than  that  a 
cause  of  action  was  given  by  implication  (/')  against  the  land- 
lord who  thus  abused  the  power  of  sale  thereby  conferred 
on  him. 

§321.  [So,  where  an  act  which  provided,  that,  if  any 
child  of  an  intestate  shall  have  any  estate  by  settlement 
from,  or  shall  have  been  advanced  by,  him,  in  liis  life-time, 
the  value  thereof  shall  be  deducted  from  the  child's  share  in 
the  estate  under  the  intestate  law,  and,  if  in  excess  of  such 
share,  shall  exclude  the  child  from  disti-ibution,  was  held  to 
include  the  case  of  an  advanced  grandchild,  partly  upon  the 
ground  of  equitable  construction,  the  decision  was,  in  fact, 
only  the  application  to  a  statute  of  the  rule,  long  familiar  in 
the  interpretation  of  wills,  that  childi-en  may  include  grand- 
children, where  the  intention  is  clear  and  such  a  meaning  is 
required  to  effectuate  that  intention  ;  the  manifest  intention 

{ay   Per   Lord  Ellenborongli    in  in  Twycross  v.  Grant,  4  C.   P.   D. 

Knubley   v.    Wilson,   7  East,  135.  45. 

It  was  Liekl  to  extend  to  all  torts  (b)  Co.  Litt.  53a  ;  2  lust.  302. 

except    those  relating   to  the  tes-  (c)  Wallace   v.   King,    1    H.   Bl. 

tator's    freehold,    or      where     the  13.    See,  also,  Pitt  v.  Shew,  4  B.  & 

injurj^  was   of   a  purely   personal  A.    208-;    Harper  v.  Taswell,  6  C. 

nature.      See  Williams  v.  Gary,  4  &  P.  160. 

Mod.  403,    12   Mod.    71  ;   Berwick  (d)  Johnson  v.  Upham,   2  E.  & 

V.    Andrews,  2  Lord   Iluym.  973;  E.  2.")0,  28  L.   J.   252.      See   R.  v. 

Bradshaw  v.    Lane.    &  Yoik.    li.  Co.x,  2  Burr.  785  ;  R.  v.  Younger, 

Co.,  L.  R.   10  C.    P.  189;  Le-rgatt  5  T.  R.  449. 

V.   Gt.  Northern   R.   Co.,  1  Q.   B.  (c)  Com.  Dig.  Distress,  D.  8. 

D.  599.      See  per  Bramwell.  L.  J..  (  f)  See  Chapter  XV. 


440  KQtriTAULK  C(iN.s'n:i:oTio.v.  | Jj  821 

of  the  statute  ill  question  being  to  cqiuilize  tiie  distribution.'"' 
And  in  the  construction  of  this  statute,  as  in  tluit  entirling 
the  eldest  sou  of  an  intestate  to  priority  of  choice  in  ac'cej)t- 
ing  real  estate  of  the  decedent,  under  which  it  was  held, 
that,  where  tlie  eldest  son  died  in  the  lifetime  of  the  dece- 
<lent,  liis  children,  the  decedent's  grandchildren  by  his 
eldest  son,  were  within  the  equity  of  the  statute,  and  took 
his  place  and  priority  of  choice,  the  construction  thus  imposed 
upon  the  language  in  question  was  an  adoption  of  the  con- 
struction previously  put  upon  an  English  act  of  similar 
tenor,  transcribed  upon  the  statute-book  of  the  state  in 
which  the  cases  arose.'"'  Again,  in  the  construction  of  the 
Pennsylvania  married  woman's  act  of  1848,  in  the  provision, 
that,  upon  the  wife's  contract  for  necessaries,  an  action  may 
be  maintained  against  her  and  her  husband,  and  upon 
a  judgment  obtained  therein,  execution  may  issue  iigainst 
the  husband  alone,  and  if  no  property  of  his  be  found,  and 
the  writ  so  returned,  an  alias  execution  shall  issue  to  be 
levied  upon  and  satisfied  out  of  the  separate  property  of  the 
wife  secured  to  her  by  the  act,  it  was  held,  that,  wliere 
the  wife  died  before  suit,  leaving  a  separate  estate,  and  her 
husband  surviving  her,  in  strict  law  his  survivorship  cast 
the  burden  upon  him,  and  as  no  action  could  be  brought 
against  the  husband  and  wife,  there  could  be  no  execution 
against  her  estate ;  and  that,  whilst,  therefore,  the  right  of 
the  creditor  to  come  in  upon  her  estate,  in  such  case,  was 
not  within  the  letter  of  the  law,  yet  that  right  existed  as 
within  its  equity,  upon  the  husband's  inability  to  pay  the 
debt  upon  her  decease.'"  Here,  too,  the  phrase  "  equity  of 
the  law"  would  seem  to  mean  nothing  but  its  intention,  as 
derived  from  a  common  sense  reading  of  its  language.  The 
decision  itself,  as  numerous  ethers  upon  the  same  statute, 
admits  that  its  design  ^vas  to  protect  the  tradesman  who 
furnished  necessaries  upon  the  credit  of  the  wife,  by  giving 
him,  not  only  a  remedy  against  the  husband,  but,  in  case  of 
his  inability  to  pay,  against  her  estate   also,  to  make  both 

»^»  Esholman's  App..  74  Pa.    St.      Serg.   &  R.    (Pa.)  2  ;  Eshclmaii's 
4?,,  47.  App.,  supra.     See  post,  i^  371. 

"'    Hersha  v.      Brenneman,     6         '-^  Davidson  v.  McCandlish,  6!) 

Pa.  St.  1G9,  172-3. 


'§321] 


EQUITABLE    CONSTRUCTION. 


441 


liable,  not  jointly,  hut  iiltcrnatoly,  the  luisbund  priniuriiy, 
the  wife  secondarily,  hut  both  absolutely.  If  the  death  of 
the  wife  were  to  destroy  the  liability  of  her  estate,  the  object 
of  the  act,  clearly  ascertained,  would  be  largely  defeated — an 
intention  not  imputable,  of  course,  to  the  Legislature. 

[The  construction  of  the  Massachusetts  act  of  1855,  giv- 
ing certain  privileges  to  "any  woman  who  may  hereafter  be 
married  in  this  connnonwealth,"  so  as  to  include  a  woman, 
who.  with  her  husband,  had  her  domicile  in  that  state,  at  the 
■time  of  marriage,  although  the  ceremony  was  performed  in 
the  state  of  New  York  ;'"  and  of  the  Kent\icky  statute,  giv- 
ing certain  powers  of  suit  to  married  women  "'who  shall 
come  in  the  state "  without  their  husbands,  so  as  to  be 
np])lical»le  to  a  married  woman  who  had  already  so  come 
when   the  act  was  passed,'^*  are   instances   of    constructions 


>2»  Woodbury  v.  Freeland,  83 
Mass.  105.  See,  also,  Joliuson  v. 
Gibbs,  140  INIass.  18G,  wbei-e  a  stat- 
ute limitiug  actions  on  indentures 
of  ai)prL'nticesiiip  given  in  the  case 
•of  town  paupers  to  two  yeais,  was 
■extended  to  cases  of  state-paupers, 
us  within  its  intention,  on  the 
ground  that  the  policy  of  the  law 
had  always  been  to  exempt  inden- 
tures by'  public  officers  binding 
paupers,  state  or  town,  as  appren- 
tices, from  the  provision  of  the 
general  statute  of  limitations  allow- 
ing an  action  on  a  sealed  covenant 
within  twenty-one  years  after 
breach,  and  in  this  respect  to  put 
town  and  state  paupers  on  the 
same  footing,  and  that  there  was 
no  reason  to  suppose  an  intention 
to  change  this  policy.  And  in 
State  ex  rel.  Broome  v.  Teleph. 
Co.;  8  Centr.  Rep.  589,  the 
Supreme  Court  of  New  Jerse}'^ 
Jield  that  the  phrase  "incorporated 
city  or  town."  in  the  acts  9  Apr. 
18t5,  and  11  March,  1880,  requiring 
telegraph  companies  to  apply  to 
the  legislative  authorities  of  such 
for  a  designation  of  the  streets  in 
which  poles  shall  be  erected,  in- 
cluded a  township,  and  any  other 
municipality,  "through  wdiich 
streets,  rather  than  roads,  [i.  e., 
"country  roads:"  p.  590,]  were 
laid."     "  We  think  it  was  the  pur- 


pose of  these  laws  to  make  such  an 
application  necessary  wherever 
there  was  this  reason  for  so  doing, 
and  that  the  word  '  towns '  should 
receive  an  interpretation  broad 
enough  to  include  all  such  places, 
whether  they  are  formally  styled 
towns,  townships,  boroughs  or 
villages."  "If  the  highways  were 
not  streets,  but  only  country  roads, 
or  if  the  legislative  body  of  the 
municipality  had  not  been  invested 
with  legal  control  over  such. 
erections,  then  the  same  reason  for 
requiring  the  application  did  not 
exist  :"'  Ibid.,  p.  590.  See  Wayne 
Co.  V.  Detroit,  17  Mich.  390,  as  to 
the  scope  of  the  phrase  "counties 
and  townships  "  in  a  constitutional 
provision  :  post,  §  518. 

1'^*  Maysville,  etc.,  R.  R.  Co.  v. 
I-Ieirick,  l:J  Bush  (Ky.)  122.  /'  To 
exclude  her,"  says  the  court  in  its 
decision,  "because  the  statute 
speaks  only  of  married  women 
'  who  shall  come,"  .  .  would  be  to 
adhere  to  the  letter  of  the  law,  and 
to  disregard  its  spirit,"  and  declar- 
ing the  act  to  be  an  enabling  act 
intended  for  the  bepeiit  of  a  class 
of  persons  under  legal  disability 
and  not  enjoying  the  protection 
incident  to  the  state  of  marriage 
because  of  the  husband's  absence 
from  the  state,  it  proceeds  :  "  and 
a  person  clearly  within  this  class 


442  KQniTABLK    CONSTRUCTION.  [§  322 

quite  wirliin  tlie  ineaiiiiii^  of  tlieplinise  "  equitable  construc- 
tion "  as  applied  to  the  cases  aliove  referred  to,  and  yet  in 
no  degree  transcending  tlie  measure  of  that  liberality  and 
fairness  with  which  words  in  statutes  are  to  be  interpi'eted  in 
the  accomplislnnent  of  the  manifest  intent  of  the  Legislature. 
In  this  sense,  it  is  evident,  "  equitable  "  construction  does 
not  go  any  farther  than,  or  signify  anything  materially  dif- 
ferent from,  "liberal  "  construction.'"] 

§  322.  Equitable  Construction  in  its  Strict  Sense. — l>ut  the 
expression  has  been  more  generally  used  in  other  senses 
[having,  to  judge  from  some  of  the  cases  in  which  it  has 
been  thus  applied,  little  enough  to  do  with  the  intention  of 
the  Legislature].  Li  the  construction  of  old  statutes,  it  has 
been  understood  as  extending  to  general  cases  the  application 
of  an  enactment  which,  literally,  was  limited  to  a  special 
case  ;  [as  requiring,  that,  when  the  expression  in  a  statute  is 
special  or  particular,  but  the  reason  is  general,  the  expression 
should  be  deemed  general.'**]  Thus,  the  Statute  of  West- 
minster 1  (3  Ed.  1,  c.  4),  which  enacted  that  a  vessel  should 
not  be  adjudged  a  wreck,  if  a  man,  a  dog,  or  a  cat  escaped 
from  it,  was  regarded  as  exempting  a  vessel  from  such 
adjudication,  by  an  equitable  construction,  if  any  other  animal 
escaped,  those  named  being  put  only  for  example  (a).  The 
46th  chapter  of  the  same  statute,  which  directed  the  judges 
of  the  King's  Bench  to  hear  their  causes  in  due  order,  was 
extended,  on  the  same  principle,  to  the  judges  of  the  other 
Courts  {b)  ;  and  the  Statute  of  Westminster  2,  31,  which 
gave  the  bill  of  exceptions  to  the  ruling  of  the  judges  of 
the  Common  Pleas,  was  similarly  held  applicable,  not  only 
to  the  other  judges  of  the  Superior  Courts,  but  to  those  of 
the  County  Courts,  the  Hundred,  and  the  Courts  Baron  ;, 
their  judges  being  still  more  likely  to  err  (c).  The  5  Hen. 
4,  c.  10,  which  forbade  justices  of  the  peace  to  commit  to  any 

will  not  be  denied  the  benefit  of  a  14  Mass.  93  ;  Eshelman's  App.,  74 

remedial  statute  by    grammatical  Pa.  8t.  43. 

construction,  at  the  expense  of  the  (a)  3  Inst.   167,  5  Rep.  107.    See 

manifest  legislative  intent."  K.    v.    Dowliug,    8   E.   &  B.  605, 

1"  Comp.   ante,  §110  and   note  ante,  §  300. 

242.  (b)  3  Inst.  256. 

'•^fi  People  V.  Ins.  Co.,  15  Johns.  (c)    2     Inst.     426;    Strother     v. 

(N.  Y.)  ;!80 ;  Whitney  v.  Wbitney.  Hutchinson,  4  Bing.  N.  C.  83. 


§  323]  EQUITABLE    CONSTRUCTION.  443 

other  than  the  common  jail,  was  lield  to  he  equally  Imperative 
on  all  other  judicial  functionaries  {a).  The  Statute  of  1 
Rich.  2,  c.  12,  which  forbade  the  Warden  of  the  Fleer,  to 
suffer  his  prisoners  for  judj^ment  debts  to  go  at  large,  until 
they  had  satisfied  their  debts,  was  held  to  include  all 
jailors  (5).  The  Statute  of  Gloucester  (6  Ed.  1),  c.  11,  in 
speaking  of  London,  was  considered  as  intending  to  include 
all  cities  and  boroughs  equally  ;  the  capital  having  been 
named  alone  for  excellency  {g).  The  statute,  or  writ  of 
circumspecte  agatis,  13  Ed.  1,  which  directs  the  judges  not 
to  interfere  with  the  Bishop  of  Norwich  or  his  clergy  in 
spiritual  suits,  was  construed  as  protecting  all  other  prelates 
and  ecclesiastics,  the  Bishop  of  Norwich  being  put  but  for  an 
example  {(T). 

§  323.  Reason  for  such  Construction  in  Ancient  Statutes. — 11ns 
kind  of  construction,  which  would  not  be  tolerated  now  (e), 
[or  which,  though  possibly  tolerated  in  remedial  and  per- 
haps some  other  statutes,  should  always  be  resorted  to  with 
great  caution,  and  never  extended  to  penal  statutes  or  mere 
arbitrary  regulations  of  public  policy,'"  so  as  never  to  war- 
rant, e.  g.,  the  conviction  of  an  accused  person  on  the 
ground  that  his  crime  comes  within  the  equity  of  the  stat- 
ute,'^'] was  said  to  have  been  given  to  ancient  statutes  in 
consequence  of  the  conciseness  with  which  they  were 
drawn  (/)  ;  though  the  specific  expressions  used  can  hardly 
be  considered  more  concise  than  the  more  abstract  terms  for 
which  they  were,  possibly,  substituted.  It  has  been 
explained,  also,  on  the  ground  that  language  was  used  with 
no  great  precision  in  early  times,  and  that  Acts  were  framed 
in  harmony  with  the  lax  method  of  interpretation    contem- 

(a)  2  Inst.  43.  and  prohibiting  any  other  method: 

{b)  Pliitl,  V.  Lock,  Plowd.  35.  Ibid.     But  see  .Jacob  v.  U.    S.,    1 

(c)  3  Inst.  322.  Brocii.  Marsh.  520.] 

{(L)  2.  lust.  487.     [Possibly  upon  (e)  Per  Pollock,  C.  B.,  in  Miller 

a  similar  principle,  it  w.-.s  said  that  v.  Salomons,  7  Ex.  475,  21  L.  J. 

a   certain    act   of  Congress  giving  197. 

the   Secretary    of   War  power    to  '"  Melody  v.  Reab,  4  Mass.  471. 

discharge  euHstcd  minor  upon  cer-  '-^  U.   S.   v.  Ragsdale,   Hempst. 

tain    conditions,     might    be     con-  497. 

strued  as  providing  a  method  for  (/)  2  Inst.  401;  10  Rep.  30b  ;  per 

the  discharge  of  pei-sons,  generally.  Lord    Brougham    in    Gwynne    v. 

improperly""   enlisted  :     Matter    of  Burnell,  6  Bing.  N.  C.  561. 

O'Connor,  48  Barb.   (N.  Y.)    258  : 


444  EQUITAIJLE    CoN'STKrcTIUN.  [§  324: 

porancously  prevalent  {a).  It  has  also  l)een  accounted  for 
by  the  fact  that  in  those  times  the  dividino-  line  between  the 
legislative  and  judicial  functions  was  feebly  drawn,  and  the 
importance  of  the  separation  imperfectly  understood  {h). 
The  ancient  pi'actice  of  having  the  statutes  drawn  by  the 
judges  from  the  petitions  of  tlje  Commons  and  the  answers 
of  the  King  {(.)  may  also  contribute  to  account  for  the  wide 
latitude  of  their  interpretation.  The  judges  would  naturally 
be  disposed  to  construe  the  language  in  which  they  framed 
them  as  their  own,  and  therefore  with  freedom  and  indul- 
gence. 

§  324.    Equitable   Restriction     of    Modern    Statutes. — But     an 
equitable  construction  has  been  applied  also  to  more  modern 
statutes,  and  in  a  sense  departing  still  more  widely  from  the 
language,  [restraining  a  statute  "by  equity  "  wiiere  a  case  was 
within  its  words,  but  supposed    not   to   be    within   its   mis- 
chief."']    Thus,  although  the  3rd  section  of  the  21  Jac.  c. 
16,  enacted  that  certain  actions  should  be  brought  within  six 
years  after  the  cause  of  action  accrued,  "and  not  after,"  it 
was  nevertheless  held,  notwithstanding  these  negative  terms, 
that  where   an  action    was   brought  within    six    years,   but 
abated  by  the  death  of  either  party,  a  reasonable  time — that 
is,  a  year,  computed,  not  from  the  death,  but  from  the  grant 
of  administration — was  to  be  granted  by   an   equitable  con- 
struction of  the  statute  beyond  the  period  given,  to  bring  a 
fresh  action  by  or  against  the  personal  representatives  of  the 
deceased    {d).     The    provision    of    the    Statute    of    Frauds, 
which  prohibits  the  enforcement  of  agreements  for  the  pur- 
chase of  lands,  unless  they   be  in    writing,  was  held   not   to 
prevent  the  Court  of  Chancery  from  decreeing   the  specific 
performance  of  such  agreements,   though   not  in   writing, 
where  they  had  been  partly   performed.      On  all   questions 
on  that  statute,  it  was  said,  the  end  and  purport  for  which  it 
was  made — namely,  to  prevent  frauds  and  perjuries — was  to 
be  considered  ;  and  any  agreement  in  which  there  was  no 

{a)   Per    Lord  Ellcnborough    in  {d)  Ilodsden  v.  Ilarridge,  2  Wms. 

Wilson  V.  Kiiublcy.  7  East,  134.  Saiind.  (i4a  ;  Curlcwis  v.  Morning- 

ib)  Sedg.  Interp."  Stat.  ?11.  ton,  7  E.  &  B.  283,  27  L.  J.   4;39. 

(c)  Co.  Litt.  2J2a  ;  sup.  §o8,note.  See,  also,  Piggott  v.  Rush,  4  A.  «& 

159  W lib.,  p.  213.  E.  912. 


§  32i] 


EQUITABLE    CONSTRUCTION. 


445 


danger  of  either,  was  considered  as  out  of  the  statute  (a). 
The  statute  was  not  made  to  cover  fraud  (h)  ;  and  as  it  would 
be  a  fraud  on  one  of  the  parties  if  a  partly-performed  con- 
tract wcie  not  completelj^  performed,  the  Court  of  Chancery 
compelled  its  performance  in  contradiction  to  the  positive 
enactment  of  the  statute  (c).  This  doctrine,  however,  which 
was  said  by  Eyre,  C  13.,  to  have  raised  the  very  mischief 
which  the  statute  intended  to  prevent  (d),  and  which  would 
probably  have  found  no  more  favor  at  a  later  period  in 
equity  {e),  was  nevei-  recognized  by  the  courts  of  eommoii 
law  (/).  On  similar  grounds,  it  would  seem,  although  the 
various  Acts  of  Parliament  which  created  stocks  since  the 
beginning  of  the  reign  of  George  I.  provided  that  no  nsethod 
of  assigning  or  transferring  the  stock,  except  that  ])rovide(l 
by  the  Act,  should  be  valid  or  available  in  law,''"  and 
directed  that  the  owner  of  stock  might  devise  it  by  will, 
attested  by  two  witnesses,  it  was  established  by  repeated 
decisions,  that,  notwithstanding  such  express  terms,  stock 
might  be  disposed  of  by  an  unattested  will ;  it  being  held 
that,  if  not  valid  as  a  devise,  the  jvill  nevertheless  bound  the 
executor  as  a  direction  for  the  disposition  of  the  stock  (g). 


(a)  Per  Lord  Hardwicke  in  Atty. 
Genl.  V.  Day,  1  Ves.  221. 

{!))  Per  Turner,  L.  J.,  in  Lincoln 
V.  Wrio-ht,  4  DeG.  &  J.  16,  28  L. 
J.  Cb.  705  ;  Haigli  v.  Kaye,  L.  R. 
7  Gil.  474  ;  Williams  v.  Evans,  L. 
R.  19  Eq.  547,  44  L.  J.  Ch.  819  ; 
Un-^lev  V.  Unglev.  5  Cb.  D.  887, 
46  L.  J.  854. 

(c)  Per  Lord  Redesdalo  in  Bond 
V.  Hopkins,  1  Scb.  &  Lef.  433. 
See,  also,  Atty-Genl.  v.  Day,  1  Ves. 
221  ;  Lester  v.  Foxcroft,  1  Colles, 
108,  and  Tudor's  Eq.  Ca.,  where 
the  kiter  aulborilies  are  collected; 
2  Story  Eq.  Jur.  ^i^  752  ct  seq.; 
Webster  v.  Webster,  27  L.  J.  Cb. 
115  ;  Wilson  v.  West  Hartlepool 
Co.,  2  DeG.  J.  &  G.  475,  84  L.  J. 
Cb.  241  ;  Nuun  v.  Fubian,  L.  R.  1 
Cb.  35.  See  Alderson  v.  Maddi- 
Bon,  7  Q.  B.  D.  178,  and  Hum- 
pbreys  v.  Green,  10  Q.  B.  D.  148. 

(fl)  O'Keiliy  v.  Tbompson,  3  Cox, 
278. 

(e)  See  ex.  gr.  Hugbes  v.  Morris, 


2  DeG.  M.  &  G.  349,  21  L.  J.  Cb. 

761. 

(/)  Boydell  v.  Drummond,  11 
East,  142,  159 ;  Cocking  v.  Ward, 
1  C.  B.  858. 

'""  A  provision  requiring  tbe 
transfer  to  be  entered  on  tbe  books 
of  the  company,  is  said  to  be 
intended  merely  tor  tbe  security  of 
tbe  corporation,  and  no  force  is  to 
be  given  toitfurtber  Iban  to  effect 
tbai  purpose  :  Ang.  &  Ames,  Corp., 
^5  354.  Hence,  a  transfer  not 
entered  on  tbe  books  is  good 
against  tbe  world,  except  a  subse- 
quent purcbaser  in  good  faitb 
witbout  notice,  in  spite  of  such 
provision  :  People  v.  Elmore,  36 
Cal.  653  ;  even  tbongb  embodied 
in  tbe  act  of  incorporation  :  Duke 
V.  Nav.  Co.,  10  Ala.  82  ;  and  see 
B'k  of  Commerce's  App.,  73  Pa. 
St.  59  ;  Agricult.  B'k  v.  Burr,  24 
Me.  256. 

(g)  Ripley  v.  AVaterwortb,  7  Ves. 
440  ;  Franklin  v.  Bank  of  England,^ 
1  Russ.  589. 


446 


KQIITAULK    CONSTIU'CTION. 


L§  325 


[The  manner  in  ^vluch  courts,  upon  supposed  grounds  of 
equity  hare  assumed  to  disregard  statutes  is  well  illustrated 
by  the  decisions  of  courts  of  equity  under  the  usury  laws,  on 
applications  made  for  the  pnrj^ose  of  restraining  the  enforce- 
ment of,  or  to  relieve  against,  contracts  which  the  law- 
declared  void,  either  in  whole  or  in  part,  on  the  ground  of 
usury.  The  rule  has  been  not  to  entertain  such  applications 
except  upon  payment  by  the  borrower  of  the  principal  and 
lawful  interest."'] 

§  325.  Principle  of  Equitable  Construction  Discredited. — Tllis 
principle  of  equitable  construction  has,  however,  fallen  into 
discredit,  [and  become"  looked  on  with  distrust ;  and  courts 
of  chancery  endeavor  to  adhere  to  the  much  more  logical  rule 
that  equity  follows  the  law.'"^']  It  was  condemned,  indeed, 
by  Lord  Bacon,  who  declared  that  non  est  interpi-etatio,  sed 
divinatio,  quae  recedit  a  litera  (a);  Lord  Tentorden  lamented 
it  {b),  and  pronounced   it   dangerous  (c) ;  and  it  may  now  be 


'''  See,  inter  ali.i,  Benlield  v. 
Solomon,  9  Ves.  Jr.  184;  Koi>ers 
V.  Kailibun,  1  Johns.  Cli.  (N.  Y.) 
307  ;  Mitchell  v.  Oakley,  7  Pais2;e 
(X.  Y.)  08  ;  Fulton  B  k  v.  Beach, 
1  Id.  429  ;  Utiea  lus.  Co.  v.  Scotl, 
(j  Coweu  (N.  Y.)294  ;  Jackson  v. 
Vanck,  2  Wend.  (N.  Y.)  294; 
Miller  v.  Ford,  1  N.  J.  Eq.  358  ; 
Jordan  V.  Trumbo,6Gill  &  J.  (Md.) 
103  ;  Legoux  v.  Waiite,  3  liar.  & 
J.  (Md.)  184  ;  McRaven  v.  Forbes, 
7  Miss.  509  ;  Eslava  v.  Elmore,  50 
Ala.  587  ;  Tooke  v.  Newman,  75 
111.  215  ;  Pickett  v.  Bank.  32  Ark. 
34G.  But  see  Norcum  v.  Lum,  33 
Miss.  299,  where  it  was  conceded, 
that,  upon  a  bill  in  equity  to 
restrain  tlie  sale  of  land  conveyed 
to  secure  an  usurious  debt,  the 
debtor  was  to  be  relieved,  upon 
proof  of  usury,  of  all  interest  to 
the  same  extent  as  if  he  had  made 
his  defense  at  law  ;  and  Catlin  v. 
Gunter,  11  N.  Y.  308,  where  the 
power  of  the  court  to  abridge  the 
rights  given  by  the  statute  were 
emphatically  denied  ;  and  see 
Koberts  v.  Goll,  4  B.  &  Aid.  92,— 
all  showing  that  the  later  decisions 
have  recognized  the  errors  of 
forn)er  ones, and  1  hat  the  courts  are 
becoming  more  and  more  disposed 


to  give  full  effect  to  the  legisla- 
tive will.  See,  also,  ^Varfield  v. 
Fox,  53  Pa.  St.  382  ;  Hunt  v.  Wall, 
75  Id.  413,  where  the  court, 
in  construing  a  statute  of  limita- 
tion as  10  real  actions,  ri; fused  to 
make  an  exception  in  favor  of  per- 
sons under  disabilities,  excepted  in 
the  general  statute  of  limitations. 
See,  also,  McGaughey  v.  Brown,  46 
Ark.  25,  that  courts  of  equity  in 
cases  of  concurrent  jurisdiction 
consider  themselves  bound  b}'  tlie 
statutes  of  limitations  that  govern 
courts  of  law  in  like  cases,  and  this 
rather  in  obedience  to  the  itatules 
than  merely  by  analogy  :  cit.  Far- 
man  V.  Brooks,  9  Pick.  (Mass.) 
212. 

'^2  Sedgw.,  p.  311  ;  (where  it  is 
said,  nevertheless:  "It  cannot  be 
denied,  how^ever,  that  a  large  class 
of  exceptions  has  been  introduced 
and  esiabiisli4,'d.")  The  rules  for 
the  construction  of  statutes  are  the 
same  in  courts  of  law  and  in  courts 
of  equity  :  Talbot  v.  Simpson, 
Pet,  C.  Ct.  188. 

(a)  Adv.  of  Learning. 

(b)  R.  V.  Turvey,  2  B.  &  A.  522. 

(c)  Brandling  v.  Barrington,  6  B. 
&  C.  475. 


§§  32('>,  327]  KQuri'ABLK  construction  447 

considered  as  altogether  discarded  as  regards  the  construction 
of  most  modern  statutes  («),  Statutes  are  now  to  be  considered 
as  framed  with  a  view  to  equitable  as  well  as  legal  doctrines  {b). 
For  instance,  the  fact  that  an  execution  creditor  had  notice, 
when  his  debt  was  contracted,  that  his  debtor  had  given  a 
bill  of  sale  to  another  person  which  was  not  registered,  was 
held  not  to  prevent  the  execution  creditor  from  availing 
himself  of  the  non-registration  (c). 

§  326.  When  Established  Equitable  Construction  of  One  Statute 
Applied  to  Another. — Where,  indeed,  a  modern  statute  is 
strictly  {d)  in  pari  materia  with  one  which  has  already 
received  an  equitable  construction,  that  construction  is 
extended  to  it  on  the  general  principle  that  they  form 
together  one  body  of  law,  and  are  to  be  construed  together  {e). 
Thus,  the  3  &  4  Will.  4,  c.  42,  s.  3,  which  limits  the  time 
for  bringing  actions  on  bonds  and  other  specialties  to  twenty 
years,  in  language  identical  with  that  nsed  in  the  21  Jac.  c. 
16,  s.  3,  respecting  simple  contract  debts,  received  the  same 
equitable  construction  as  had  been  given  to  the  last  named 
Act  ;  and  the  administrator  of  the  obligor  of  a  bond  which 
had  been  put  in  suit  in  1831,  in  which  year  the  action  abated 
by  the  death  of  the  obligor,  was  held  to  be  liable  to  be  sued 
in  1858,  within  a  year  from  the  grant  of  letters  of 
administration  (/'). 

§  327.  Adoption  of  Princinle  from  Analogy  to  Statute. — It  may 
not  be  out  of  place  to  mention  here  that  the  expression  "  the 
equity  of  a  statute "  is  sometimes  nsed  as  meaning  the 
principle  or  ground  of  a  rule  adopted  from  analogy  to  a 
statute  ;  [and  in  this  sense,  the  rule  as  to  the  equity  of  a 
statute  is  said  to  be  especially  applicable  to  statutes  relating 
to  practice  and  procedure."*]  For  instance,  the  6  Rich.  2, 
which  provided  that  a  writ  should  abate,  if  the  declaration 
showed  that  the  contract  sued  upon  was  made  in  a  different 

(a)  See  per  Jessel,  M.  R.,  iu  Exp.  (e)  Sup.  §§  43 et  seq.  [See  Horslia 

Walton,  17  Cb.  D.  750.  v.  Brennemnn,  6  Serg.  &  R.  (Pa.) 

{b)  Fer  James,  L.  J.,  and  Hellish,  2  ;  Esbel man's  App.,  74  Pa.  St.  43, 

L.  J..  2  C:h.  D.  296,  297.  ante.  §  321.] 

(c)  Edwards  v.  Edwards,  2  Ch.  (/)  Sturgis  v.  Darrell,  4  H.  & 
D.  291,  45  L.  J.  50.  N.  G23,  28  L.  J.  3G6. 

(d)  Comp.  Adam  v.  Inhabts.  of  '»■»  See  Hoguet  v.  Wallace,  28  N. 
Bristol,  2  A.  &  E.  389.  J.  L.  523. 


448 


EQUITABLE    C0N8TKU0TI0N. 


[§32r 


county  from  tliat  mentioned  in  the  writ,  is  said  to  have 
led,  by  the  equity  of  tliat  statute,  or  tlie  analogy  which  it 
furnished,  to  the  introduction,  by  the  judges,  in  the  reign  of 
James  I.,  of  the  pi-acticc  of  cliangiiig  the  venue  on  motion, 
where  there  was  no  varian(!e  between  tl)e  wi'it  and  declar- 
ation, as  to  the  place  wliere  the  cause  of  action  arose  (a). 
[The  pi-ovi.>ion  of  a  stjitute  that  tlu;  burden  of  showing 
irregularities  in  sales  theretofore  or  thereafter  made  under 
a  certain  statute,  should  I>e  on  the  ])arty  objecting  to  the 
sale,  Avas  applied  to  sales  made  under  earlier  statutes  of 
similar  purport,  as  being  within  the  spirit  of  the  enact- 
ment.'^^ And  a  statute  allowing  judgment  to  be  entered  in 
vacation  on  nil  dieit,  M'as  extended  to  authorize  judgment 
on  cognovit,  as  within  its  equity."'  So  it  was  held,  that, 
under  the  laws  of  Massachusetts,  the  ])owei'  of  an  adminis- 
trator to  sell  his  intestate's  real  estate,  under  an  order  of  a 
court  of  probate,  must  be  exercised  within  a  leasonable  time 
after  the  decedent's  death,  to  be  fixed  by  analogy  to  the 
statute  of  limitations.'"  And  where  an  act  regulating  the 
levy  and  collection  of  taxes,  and  providing,  intei'  alia,  that 
lands  sold  for  non-payment  of  such  might  be  redeemed 
within  a  certain  time  upon  payment  of  a  certain  penalty, 
Avas  repealed  by  a  later  one  changing  the  time  for  rcdenq)tion 
and  the  amount  of  the  penalty,  but  providing  that  the  former 
act  should  remain  in  force  for  the  collection  of  taxes  levied 
thereunder,  it  was  declared  that  an  act  in  force  for  the 
collection  of  taxes,  should  be  deemed  in  force  for  the  pur- 
pose of  redemption,  provided  the  penalty  fixed  by  it  was 
tendered  within  the  time  prescribed  by  the  old  act."*] 

(a)  Knight  v.    Farnaby,  2  Salk.  59,   following  Gore   v.    Brazer,    3 

670  ;  1  Sail  ml.  74  (2) ;  Tidd.  Pr.  c.  Mass.  523.  542;    Wynian  v.   Brig- 

25.  den,  4  Id.  150,   155  ;  and   Summer 

'35Cl)andler     v.     Northrop,     24  v.  Ciiilds,  2  Conn.   607,  wlieie.  p. 

Barb.  (N.  Y.)  129.  615,  it  is  .said  ihat  statutes  of  limi- 

13G  iiogiu't    V.     Wallace,    supra,  tations    made    in    respect  of  real 

In  Slate  v.  ]\Iaiming,  14  Tex.   402,  rights,  whether  corporeal  or  iucor- 

a  statute  giving  an  appeal  "when  poreal,  have  always  been  extended, 

a  judgment  shall  be  given  for  the  by  the  courts  to  analogous  cases, 

defendant  on  a  motion   to   quash  See,   also,   McFailand  v.  Stone,   17 

an  indictment,"  was  held    to  give  Vt.  173.     But  see  Martin  v.  Robiu- 

an  appeal  where  the    indictment  son.  67  Tex.  368.  ante,  i^  20.  note, 
was  abated  by  plea,  the  legal  ell'ect         '^^  Wolfe  v.  Henderson,  2«  Ark. 

in  t.oth  cases  being  the  .same.  304. 

'3'  Ricard  v.  Williams,  7  Wheat. 


§  328J  EQUITABLE    CONSTRUCTION.  449 

§  328.  Acts  Contrary  to  Natural  Equity,  etc.— It  was  formerly 
asserted  that  a  statute  contrary  to  natural  equity  or  reason 
(such  as  one  which  made  a  man  a  judge  in  his  own  case),  or 
contrary  to  Magna  Charta,  was  void  ;  for,  it  was  said,  jure?.- 
naturae  sunt  immutabilia  ;  they  are  leges  legum  ;  and  an  Act 
of  Parliament  can  do  no  wrong  {a).  But  such  dicta  cannot 
be  supported.  They  stand  as  a  beacon  to  be  avoided,  rather 
than  as  an  authority  to  be  followed  (Ij). 

The  law  on  this  subject  cannot  be  better  laid  down  than 
in  the  following  words  of  a  great  American  authority:  "It 
is  a  principle  in  the  English  law  that  an  Act  of  Parliament, 
delivered  in  clear  and  intelligible  terms,  cannot  be  questioned, 
or  its  authority  controlled,  in  any  court  of  justice.  'It  is,' 
says  Sir  W.  Blackstone,  'the  exercise  of  the  highest  authority 
that  the  kingdom  acknowledges  upon  earth.'  When  it  is 
said  in  the  books  that  a  statute  contrary  to  natural  equity  and 
reason,  or  repugnant,  or  impossible  to  be  performed,  is  void, 
the  cases  are  understood  to  mean  that  the  Courts  are  to  give 
the  statute  a  reasonable  construction.  They  will  not  readily 
presume,  out  of  respect  and  duty  to  the  lawgiver,  that  any 
very  unjust  or  absurd  consequence  was  within  the  contempla- 
tion of  the  law.  But  if  it  should  happen  to  be  too  palpable  in 
its  direction  to  admit  of  but  one  construction,  there  is  no 
doubt,  in  the  English  law,  as  to  the  binding  efficacy  of  the 
statute.  The  will  of  the  Legislature  is  the  supreme  law  of 
the  land,  and  demands  perfect  obedience. 

"  But  while  we  admit  this  conclusion  of  the  English  law, 
we  cannot  but  admire  the  intrepidity  and  powerful  sense  of 
justice  which  led  Lord  Coke,  when  Chief  Justice  of  the 
king's  Bench,  to  declare,  as  he  did  in  Doctor  Bonham's  case, 
that  the  Common  Law  doth  control  Acts  of  Parliament,  and 
adjudges  them  void  when  against  common  right  and  reason. 
The  same  sense  of  justice  and  freedom  of  opinion  led  Lord. 
Chief  Justice  Hobart,  in  Day  v.  Savadge,  to  insist  that  an 

(a)  Bonham's  Case,  8  Rep.  118a;  Col.  116,  it  is  said  tliat  the  court 

City  of  London  v.  Wood,  12  Mod.  viay  inferfeie  with  a  special  act  for 

687;    Day   v.   Savadge,  Hob.  87;  bad  faith  or  want  of  investigation 

Mercers  v.  Bowker,  1  Stra.  639  ;  3  on  the  part  of  the  Legislature  ;  but 

Inst.  111.     So  enacted  us  to  Magna  that  such  are  not  to  be  presumed.l 

Charta  by  42  Ed.  3,  c.   1,  Co.  Litt.  {b)  See  per  Willes.  J.,  in  Lee  v. 

81a.      [la   Carpenter  v.  People,  8  Bude  II.  Co.,  L.  R.  6  C.  P.  582. 

2i.> 


4'A>  EQUITABLE  CONSTKLCTION.  [§  328 

Act  of  l*arliuinent  made  agaiiibt  natural  equity,  as  to  make 
a  man  judge  in  liis  own  case,  was  void  ;  and  induced  Lord 
Chief  Justice  Holt  to  say,  in  the  case  of  the  City  of  London 
V.  "Wood,  that  the  observation  of  Lord  Coke  was  not  extrava- 
gant, but  was  a  very  reasonable  and  true  saying.  Perhaps 
what  Lord  Coke  said  in  his  reports  on  this  point  may  have 
been  one  of  the  many  things  that  King  James  alluded  to, 
when  he  said  that  in  Coke's  reports  there  were  many  danger- 
ous conceits  of  his  own  uttered  for  law,  to  the  prejudice  of 
the  crown,  parliament,  and  subjects  "  {a). 

(«)  1  Kent,  Comm.  447. 


329]  STRICT  CONSTRUCTION.  451 


CHAPTER  XII. 

Strict  Construction. 

§  329.  The  Rule  of  Strict  Construction  Applied  to  Penal  Statutes. 

§  330.  Results  of  Application  of  the  Rule. 

§  331.   What  are  Penal  Laws. 

§  3SJ3.  Acts  Partly  Penal.     Frauds. 

§  334.  Degree  of  Strictness  to  be  Applied.     Illustrations. 

§  335.  Exclusion  of  New  Things  by  Rule  of  Strict  Construction. 

§  336.  Treatment  of  Omissions  in  Acts  within  Rule  of  Strict  Construc- 
tion. 

§  337.  Qualihcationsof  Rule  of  Strict  Construction.     Modern  Tendency. 

§  340.  Acts  Encroaching  on  Rights. 

§  341.  Common  Law  Rights  of  Persons  and  Property. 

§  344.  Summary  Proceedings. 

§  345.  Acts  Imposing  Burdens. 

§  347.  Acts  Allowing  Costs. 

§  348.  Acts  Regulating  Form  and  Execution  of  Contracts. 

§  349.  Acts  Creating  Monopolies,  etc. 

§  350.  Acts  Creating  Exceptions  from  Recognized  Liabilities,  etc. 

§  351.  Acts  Creating  New  or  Special  Jurisdictions. 

§  352.  Acts  Delegating  Powers. 

§  354.  Acts  Investing  Private  Persons  with  Privileges.     Corporations. 

§  356.  Acts  Conferring  Exemptions  from  Common  Burdens  or  Surren- 
dering Public  Rights. 

§  329.   The  Rule  of  Strict  Construction  applied  to  Penal  Statutes. 
— Tlie  rule  wliicli  requires  that  penaP  and  some  other  stat- 

1  See  U.  S.  V.  Hall,  6  Cranch,  8  Centr.  Rep.  623,  624  ;  Philadel- 

171  ;   U.  S.  V.   Sheldon,  2  Wheat,  phia  v.    Davis,  6   Watts  &  Serg. 

119  ;  U.  S.  V.  Starr,  Hemps.  469  ;  (Pa.)      269  ;    Gallagher    v.    Neal, 

U.  S.  V.  Dist.  Spirits,   10  Blatcbf.  3  Pen.    &    W.    (Pa.)   183  ;   War- 

428  ;  U.  S.  V.  Clayton,  2  Dill.  219  ;  ner    v.    Com'th.    1    Pa.   St.     154  ; 

The    Enterprise,    1     Paine,     32 ;  Bucher  v.    Com'th,    103  Id.    528 ; 

Andrews  v.   U.  S.,  2   Story,  202;  Simms  v.  Bean,  10  La.  An.  346; 

Whitney  v.  Emmett,  Baldw.  303  ;  State  v.   Whetstone,    13  Id.   376  ; 

Matter  of    Baker,   29    How.    Pr.  Rawson  v.  State,    19  Conn.    292 ; 

(KY.)  485;  Hunkius  v.  People,  106  Pierce's  Case,  16  Me.  255  ;  Hall  v. 

111.  628  ;    Bettis  v.  Taylor,  8  Port.  State,  20  Ohio,  7  ;  Ramsey  v.  Toy, 

(Ala.)  564  ;   Gunter  v.  Leckev-  30  10  Id.  493  :   Steel  v.  State,  26  Ind. 

Ala.  591 ;  Lair  v.  Killmer,  25  iST.  J.  82  ;    West.    Union    Tel.     Co.     v. 

L.  522  ;  State  v.  Mewton  (N.    J.)  Steele,  108  Id.  163  ;  State  v.  Solo- 


4o2  STRICT   CONSTRUCTION.  [§  329' 

iites  sliall  be  construed  strictly  was  more  rigorously  applied 
in  former  times,  when  the  number  of  capital  offences  wao 
one  hundred  and  sixty  or  more  {a)  ;  when  it  was  still  pun- 
ishable with  death  to  cut  down  a  cherrj'  tree  in  an  orchard,, 
or  to  be  seen  for  a  month  in  the  company  of  gipsies  {h). 
But  it  has  lost  much  of  its  force  and  importance  in  recent 
times,  since  it  has  become  more  and  more  generally  recog- 
nized that  the  paramount  duty  of  the  judicial  interpreter  is 
to  put  upon  the  language  of  the  Legislature,  honestly  and 
faithfully,  its  plain  and  rational  meaning,  and  to  promote 
its  object.  It  was  founded,  however,  on  the  tenderness  of 
the  law  for  the  rights  of  individuals,  and  on  the  sound  ]-)rin- 
ciple  that  it  is  for  the  Legislature,  not  the  Court,  to  define  a 
crime  and  ordain  its  punishment  (c).  It  is  unquestionably  a 
reasonable  expectation,  that,  when  the  former  intends  the 
infliction  of  suffering,  or  an  encroachment  on  natural  liberty 
or  rights,  or  the  grant  of  exceptional  exemptions,  powers, 
and  privilege-,  it  will  not  leave  its  intention  to  be  gathered 
hy  mere  doubtful  inference,  or  convc}'  it  in  "  cloudy  and. 
dark  words  "  only  (//),  [ — for  an  offence  cannot  be  created  or 
inferred  by  vague  implications" — ]  but  will  manifest  it  with 
reasonable  clearness.  The  rule  of  strict  construction  does 
not,  indeed,  require  or  sanction  that  suspicious  scrutiny  of 
the  words,  or  those  hostile  conclusions  from  their  ambiguity^ 
or  from  what  is  left  unexpressed,  which  characterize  the 
judicial   interpretation  of  afiidavits  in   support  of  ex  parte 

mons,  3  Hill  (S.  C.)  96  ;  Hincs  v.  fully  carried  into  ofTcct," — ;i  pro- 
R.  R.  Co.,  95  N.  C.  434  ;  Elam  v.  vision,  ■vvhicii,  il  Avas  there  said, 
Rawson,  21  Ga.  139;'  Gibson  v.  though  applying  to  all  statute.'^. 
Stale,  38  Id.  571  ;  Horner  v.  State,  does  not  require  tiie  court  to  bring 
1  Greg.  2G7  ;  Bish.,  Wr.  L.,  §g  196,  cases  of  a  iil^e  nature,  not  named 
230  et  seq.  An  ordinance  penal  in  terms,  or  by  implicaliun,  into  a 
in  its  nature  is  equally  subject  to  statute,  nor  yet  to  give  a  narrow 
the  rule  of  strict  construction  :  and  restricted  meaning  to  tlie  Ian- 
Pacific  V.  Seifert,  79  Mo.  210.  In  guage  employed,  but  fairly  and 
the  case  of  llankins  v.  People,  106  reasonably  to  carry  out  the'  legis- 
111.  028,  tlie  rule  of  strict  construe-  tative  intent. 

tion  of  penal  statutes  in   the  sense         (a)   4    Bl.,    Comni.  18.     Accord- 
in    which   alone   it   is    respectable  ing  to  Sir  S.    Romillj-,  it  was,  ia 
(see  infra)  was  asserted  in  the  face  his  time,  two  hundred  and  thirty, 
of  a  statutory  rule  of  construction         (i)  4  Bl.,  Comm.  4. 
that     "all     general      provisions,         (c)    U.     S.     v.     Wiltberger,      5 
terms,    i)hrases     and    expressions  Wheat.  95. 
Hhall     be    literally     construed,    in  (d)  4  Inst.  332. 
♦)rder    tliat    the    true    intent    and         ^  Atlanta  v.  White,  33  Ga.  229. 
meaning  of  the  Legislature  may  be 


§  329] 


STRICT    CONbTRUCTION. 


453 


applications  (a),  or  of  iiuigistrates'  convictions,  where  the 
ambiguity  goes  to  the  jurisdiction  {h).  Nor  does  it  allow 
the  imposition  of  a  restricted  meaning  on  the  words, 
wherever  any  doubt  can  be  suggested,  [or  an  ambiguity 
imagined,^]  for  the  purpose  of  withdrawing  from  the  opera- 
tion of  the  statute  a  case  which  falls  both  within  its  scope 
and  the  fair  sense  of  its  language.  This  would  be  to  defeat, 
not  to  promote,  the  object  of  the  Legislature  (c)  ;  to  misread 
the  statute  and  misunderstand  its  purpose  {d).  A  Court  is 
not  at  liberty  to  put  limitations  on  general  words  which  are 
not  called  for  by  the  sense,  or  the  objects,  or  the  mischiefs 
of  the  enactment  (e) ;  [nor  so  to  narrow  the  construction  as 
to  exclude  cases  which  the  words  of  the  statute,  in  their 
ordinary  acceptation  and  plain  meaning,  or  in  the  sense  in 
which  the  Legislature  obviously  used  them,  would  compre- 
hend ;*]  and  no  construction  is  admissible  which  would  sanc- 
tion an  evasion  of  an  act  (/),  [or  would  defeat  the  obvious 
intention  of  the  Legislature/  Li  order  to  avoid  such  a 
result,  as  has  been  seen,  it  is  even  allowable  to  reject  what 
is  clearly  surplusage  in  an  act.*  "  It  is  true  that  a  penal  law 
must  be  construed  strictly,  and  according  to  its  letter.     But 


(a)  See  ex.  gr.  Perks  v.  Severn, 
7  East,  194 ;  Fricke  v.  Poole,  9  B. 
&  C.  543. 

ip)  See  R.  V.  Davis,  5  B.  &  Ad. 
551  ;  R.  V.  Joues,  12  A.  &  E.  684  ; 
per  Coleridge,  J.,  la  R.  v.  Toke,  8 
A.  &  E.  227;  per  cur.  in  Lindsay  v. 
Leigh,  11  Q.  B.  405  ;  R.  v.  Stain- 
forlli.  Id.  75;  Flelcker  v.  CaUhrop, 
6  Q.  B.  880. 

3  See  Com'th  v.  Martin,  17  Mass. 
359 ;  Com'th  v.  Keniston,  5  Pick. 
(Mass.)  420. 

(c)  Buc.  Ab.  Stat.  I.  9  ;  R.  v. 
Hodnett,  1  T.  R.  101. 

(d)  Per  Martin,  B.,  in  Nicholson 
V.  Fields,  31  L.  J.  Ex.  236,  7  H.  & 
N.  710;  and  Brarawell,  B.,  in  Foley 
V.  Fletcher,  3  II.  &  N.  781. 

(c)  U.  S.  v.  Coombs,  12  Peters, 
80. 

^U.  S.  V.  Wilson,  Baldw.  78; 
State  V.  Lovell,  23  Iowa  304 ; 
Huffman  v.  State,  29  Ala.  40; 
Walton  V.  State.  02  Id.  197  ;  Pike 
V.  Jenkins,  12  N.  II.  255. 

(/)  Com.  DifiT.  Pari.  R.  28  ;  Bac. 


Ab.  Stat.  J.;  2  Rol.  127.  Per  cur. 
in  U.  S.  v.  Wiltberger,  5  Wheat. 
95  ;  U.  S.  V.  Gooding,  12  Wheat. 
460;  American  Fur  Co.  v.  U.  S.,  2 
Peters,  367:  U.  S.  v.  Coombs,  13 
Peters,  80  ;  U.  S.  v.  liar  I  well,  G 
Wallace,  395. 

^  Sec  U.  S.  V.  Wiltberger,  supra; 
Amer.  Fur  Co.  v.  U.  S.,  supra  ; 
U.  S.  V.  Morris,  14  Pet.  464 ;  U.  S. 
V.  84  Boxes  of  sugar,  7  Id.  453 ; 
Jones  V.  Estis,  2  Johns.  (N.  Y.) 
379  ;  Sprague  v.  Birdsall,  2  Cow. 
(N.  y.)  419;  Com'lh  v.  Loring,  8 
Pick.  (Mass.)  370;  Reed  v.  Davis, 
Id.  514;  Crosby  v.  Hawthorn.  25 
Ala.  221  ;  Broad  well  v.  Conger,  2 
N.  J.  L.  210  ;  Bartolett  v.  Achey, 
88  Pa.  St.  273  ;  Daggett  v.  State,  4 
Conn.  61  ;  State  v.  Main.  31  Id. 
572  ;  Butler  v.  Ricker,  0  Creenl. 
(Me.)  208  ;  Parkinson  v.  State.  14 
Md.  184  ;  Doe  v.  Avaline,  8  Ind. 
6;  nines  v.  R.  R.  Co.,  95  N.  C. 
434:  Bish.,  Wr.  L.,  §237. 

6  See  ante,  j?  302,  U.  S.  v.  Stern. 
5  Blatchf.  512. 


454:  STRICT    CONSTliUCTION.  [§  329 

this  strictness,  wliieh  has  run  into  an  npiiorisni,  means  no 
more  than  that  it  is  to  be  interpreted  acconling  to  its  lang- 
uage. Literal  interpretation  is  but  a  figurative  expression, 
meaning,  perhaps,  that  we  are  to  adhere  so  closely  to  the 
language,  we  are  not  to  change  the  signification  by  drop- 
ping even  a  letter.  The  purpose  of  the  rule  is  to  prevent 
acts  from  being  brought  within  the  scope  of  punishment, 
because  courts  nuiy  suppose  they  full  within  the  spirit  of" 
the  law,  though  not  within  its  terms.'"  The  strictness^ 
then,  with  which  acts  falling  under  the  rule  of  strict  con- 
struction are  to  be  interpreted,  is  what  in  one  place  is  called 
a  "  reasonable  strictness."*  "  It  is  not  the  exact  converse  of 
liberal  construction,  and  does  not  consist  in  giving  words  the 
narrowest  meaning  of  which  they  are  susceptible."*  The 
meaning  of  the  rule  is,  ''  that  acts  of  this  kind  are  not  to  be 
regarded  as  including  anything  which  is  not  within  their 
letter  as  well  as  their  spirit,*"  which  is  not  clearly  and  intel- 
ligiijly  descriljed  in  the  very  words  of  the  statute,  as  well  as 
manifestly  intended  by  the  Legislature.""  That  is,]  the 
rule  of  strict  construction  requires  that  the  language  shall 
be  so  construed  that  no  cases  shall  be  held  to  fall  within  it 
which  do  not  fall  both  within  the  reasonable  meaning  of  its 
terms  and  within  the  spirit  and  scope  of  the  enactment  [a). 
To  determine  that  a  case  is  within  the  intention  of  a  statute, 
its  language  must  authorize  the  Court  to  say  so  ;  but  it  is  not 
admissible  to  carry  the  principle  that  a  case  which  is  within 
the  mischief  of  a  statute  is  within  its  provisions,  so  far  as  to 
punish  a  crime  not  specified  in  the  statute,  because  it  is  of 
equal  atrocity  or  of  a  kindred  character  with  those  which 
are  enumerated  {h).  [In  this  characteristic,  the  difference 
between  liberal  and  strict  constructions  is  clearly  ])resented. 
Whilst  the  letter  of  a  remedial  statute   may  be  extended   to 

'  Com'th  V.  Cooke,  50  Pa.    St.  v.  Sondes,  3  Bing.  580;   Bracey's 

201,  207.  Case.  1  Salk.  348;  R.  v.  Haivey,  1 

8  Cliapin  V.  Persse,  etc.,  AVorks,  Wils.     104  ;     Dawes     v.     Painter, 
30  Conn.  4G1.  Ficem.     K.     B.     175  ;     Scott    v. 

9  Will).,  p.  246  ;  and  see  State  v.  Pacquet,  F..  R.  1  P.  C.  552  ;  Ellis 
Powers,  30  Conn.  77.  v.  M'Corniiek.  L.  R.  4  Q.  B.  271  ; 

'0  Sec  Dewey  v.  Goodeuough,  56      The  Gaunllett.  L.   R.  4  P.  C.  191, 
Barb.  (N.  Y.)"54.  '  per  James,  L.  J. 

'>  Wilb.,  p.  246.  (b)  U.  S.  v.  Wiltbersrer,  5  Wheat. 

(a)  Per  Best,  C.  J.,  in  Fletcher      9!i.   |U.  S.  v.    liaiisdale,    Ilempst. 

41)7.] 


§  320]  STRICT    CONSTRUCTION.  -iofi 

cases  clearl}'  within  the  same  reason  and  within  the  mischief 
the  act  was  designed  to  cure,  unless  such  construction  doe8 
violence  to  the  language,  a  consideration  of  the  old  law,  the 
mischief  and  the  remed}^  though  proper  in  the  construction 
of  criminal  as  well  as  other  statutes,'*  is  not  in  itself  enough 
to  bring  a  case  within  the  operation  of  the  former  class  of 
statutes  ;  their  language,  properly  given  its  full  meaning, 
must,  at  least  by  that  meaning,  expi-essly  include  the  case; 
and  in  ascertaining  that  meaning  the  court  cannot  go 
beyond  the  plain  meaning  of  the  words  and  phraseology 
employed  in  search  of  an  intention  not  certainly  implied  in 
them.'^  In  other  words,  whilst  a  case  may  come  within  the 
purview  of  a  remedial  statute  unless  its  language,  properly 
construed,  excludes  it,  it  is  excluded  from  the  reach  of  a 
criminal  statute,  unless  the  language  includes  it  :**  unless 
the  proper  meaning  of  the  language  of  the  statute  brings 
a  case  within  its  letter,  the  rule  of  strict  construction 
forbids  the  court  to  create  a  crime  or  penalty  by  con- 
struction, and  requires  it  to  avoid  the  same  by  construc- 
tion ;'*  and,  although  the  court  may  be  unable  to  conceive 
any  reason  why  the  case  in  question  should  have  been  omit- 
ted, and  considers  it  highly  improbable  that  an  omission  was 
intended,"  it  is  not  at  liberty  to  extend  the  enactment  to 
cases  not  included  within  the  clear  and  obvious  import  of  the 
language ;"  so  that,  for  instance,  under  an  act,  which,  in  its 
eighth  section  provided  for  the  punishment  of  certain 
offences,  among  which  manslaughter  was  not  mentioned, 
committed  upon  the  high  seas,  or  in  any  river,  haven,  basin 
or  bay,  and  in  section  twelve,  punished  manslaughter  on  the 
high  seas,  no  indictment  could  be  maintained  against  one  for 
manslaughter  committed  on  board  an  American  vessel,  in 
the  River  Tigris,  in  China,  sixty-live  miles  from  its  mouth.'' 
If  the  Legislature  has  not  used  words  sufficiently  compre- 
hensive to  include  within  its  prohibition  all  the  cases  which 

'•^  See  ante,  ^  27;    post,  §  337.  Cooke,     supra  ;    Philadelphia    v. 

«  Hines  v.   R.  R.  Co.,  95  N.  C.  Wright,  4  Phila.  (Pa.)  138. 

434  '«  U.  S.  V.  Willberger,  5  Wheat. 

'•»■  State  V.  Powers,  30  Conn.  77.  76,  105. 

"   West.    Un.    Tclegr.    Co.    v.  "Ibid.;     U.     S.     v.     Ragsdale. 

Axtell,  69  Ind.  199 ;  Lair  v.  Kill-  llempst.  497  ;   State  v.  Peters,  37 

mer,  25  N.  J.  L.  522  ;  Com'th  v.  La.  An.  730. 

'*  U.  S.  V.  Wiltberger,  supra. 


456  STRICT   CONSTRUCTION.  [§§  33<»,  oal 

fall  \rithin  the  mischief  intended  to  be  prevented,  it  is  not 
coMipetont  to  a  Conrt  to  extend  them  (a) ;  [nor  to  extend  tlie 
i^ranimatical  and  natural  meaning  of  the  terms  as  used  by 
the  Legislature  even  on  a  plea  of  a  resulting  failure  of 
justice.' 

§  330.  Results  of  AppUcation  of  the  Rule. — [It  may  be  here 
added  that  the  rule  of  strict  construction,  in  the  case  of 
penal  statutes,  requires,  that,  where  an  act  contains  such  an 
unibiguity  as  to  leave  reasonable  doubt  of  its  meaning,  it  is 
the  duty  of  the  court  not  to  inflict  the  penalty  \"'  that  where 
it  admits  of  two  constructions,  that  which  operates  in  favor 
of  life  or  liberty  is  to  be  preferred  ;"  that,  where  a  statute  is 
silent  as  to  the  place  of  imprisonment,  there  being  county 
jails  for  persons  guilty  of  misdemeanors,  and  the  penitentiary 
for  those  guilty  of  higher  crimes,  the  former,  rendering  the 
punishment  less  severe,  is  to  be  chosen  ;"  and  that,  where 
notice  is  required  by  an  ordinance  imposing  a  fine,  a  personal 
notice  is  to  be  intended.''] 

§  331.  What  are  Penal  Laws.— It  is  immaterial,  for  the 
purpose  of  the  a|)plication  of  the  rule  of  strict  construction, 
whether  the  proceeding  prescribed  for  the  enforcement  of 
the  penal  law  be  criminal  or  civil  {b).  [Thus,  an  act  giving 
a  party  injured  a  civil  action  for  the  recovery  of  a  penalty 
imposed  upon  a  public  officer  for  charging  illeg;^l  fees,  is  a 
penal  act :  so  that  the  taking  of  excessive  fees  by  a  person 
after  the  expiration  of  his  office,  for  services  done  while  in 
office,  is  i)eyond  the  reach  of  the  act.**     So,  too,  acts  have 

(a)  Per  Lord  Tciiterdon  in  Proc-  may,  as  well  as  those  that  must  be^ 

tor  V.  Manwariui!:,  3  B.  &  A.  145.  so  punished:  State  v.  Maybeiry,  48 

'9  Hemmiugton  V.  Stale,  1  Orcg.  Mc.  218.  See  post,  §  389. 
281.  {l>)  Henderson  v.  Sherborne,  2  M. 

20Com'th   V.  Standard  Oil   Co.,  &  W.  2:J6  ;  Nicholson  v.  Fields,  7 

101    Pa.    St.    Ill),    150    (eit.     The  II.  &  N.  810 ;  Fletclier  v.  Hudson. 

Enterprise,  1   Paine,  ;12);  ilines  v.  51  L.  J.  Q.  B.  48;  The  Bolina,  1 

li.  R.  Co.,  95  N.  V.   i;U.  Gallison,  83.  per  Story,  J. 

^^  Oom'lh  V.    IMarlin,    17  Mass.  "  Aechternacht  v.  Walmoush,  8 

359  ;  Com'th  v.  Keuiston,  5  Pick.  Watts  &,  S.  (Pa.)  1G2,    overruliusj 

(Miiss.)  420.  .Tackson   v.   Purdue,  3  Pen.  &  W. 

"  Horner  v.  State,  1  Oreg.  267.  (Pa.)  519,  and  apparenily  at  vari- 

2^  St.  Louis  V.  Goebel,  32  Mo.,  ance  with  Ordway  v.   Ccutr.  Nat, 

295.     See  Marstou   v.    Tryou,   108  B'k,  47  Md.  217,  where  an  act    is 

Pa.    St.  270,   po.st,  §  331.     But  a  doenu'd  penal  oidy  when  the  riglit 

reference  to  crimes' i)unishabU'  in  of  enlorcing  ihe  pwialty  is  given  to 

the  state  prison,  iucludes  liiose  that  the  public  or  the  Government,  uot 


g  i'AM]  STRICT    CONSTRUCTION.  i57 

been  hold  Donal,  uikI  subject  to  tlio  rule  of  strict  constivctioii, 
which  impose  upon  a  party  neglecting  within  a  certain  time 
after  notice  to  him  to  enter,  by  himself  or  his  attorney,  satis- 
faction of  a  judgmeJit  paid  with  costs,  a  forfeiture  of  one- 
Jialf  the  debt,  to  be  recovered  by  the  defendant ;"  (so  that  a 
notice  to  the  plaintiff's  attorney,  not  to  the  plaintiff  himself, 
\yonld  not  entitle  the  defendant  to  maintain  the  action  for  the 
penalty")  :  which  authorized  the  addition  of  a  percentage  to 
ti  tax  assessed  against  a  party,  upon  failure  to  make  a  certain 
report  or  return  required  by  the  act ;"  or  imposed  a  liability 
for  interest  at  the  rate  of  twelve  per  cent,  per  annum  for 
non-payment  within  a  certain  period  after  it  was  due,  and 
notice  thereof  was  given,  and  demand  made  for  the  same :" 
acts  which  make   a  party  liable  to  judgment  for  double  the 
amount  of  the  damages  found  by  the  jury  ;"  or  to  double  or 
treble   damages  ;^°  though  the  suit  may  have  none  of  the 
•characteristics  of  a  criminal  prosecution;^'  and  acts  concerning 
contempts.'*     It  is  not  necessary  that  the  statute  should,  like 
statutes  of  the  class  last  enumerated,  denominate  the  liability 
to  which  a  person  is  subjected  by  it  a  penalty  or  forfeiture. 
Wherever   a  person  in    a  particular  relation,  e.  g.,  as   the 
officer  of  a  company,  is,  as  such,  made  liable  to  the  payment 
of  money,  either  as  the  result  of  the  omission  of  something, 
the  performance  of  which  is  enjoined  upon  hira,  or  for  the 
commission  of  an  act  prohibited,  where,  but  for  the  omission 
of  the  enjoined,  or  the  doing  of  the  forbidden  act,  he  would 
be  under  no  such  liability,  the  imposition  of  the  latter  is,  so 
far  as  he  is  concerned,  by  way  of  punishment,  and  the  act  is, 
as  to  him,  penal.''     Nor,  on  the  other  hand,  is  every  statute 

when    it    is    given    to    the  party  "»  Bay  City,  etc.,   li.   R.   Co.  v. 

o-iieved.  Austin,  '^1  Mich.  390. 

*5  Marston  v.  Tryon,  108  Pa.  St.  ^^  Reed  v.  Davis.  8  Pick.  (Mass.) 

270.                          "  515  ;    Cole    v.    Groves,    184   Mass. 

26  Ibid.     See  St.  Louis  v.  Gocbel,  471  ;  Cohii  v.  Neeves,  40  Wis.  3'J3. 

:33  Mo.  295,  ante,  §  3;J0.    See  §  74.  and  see  B.iyard  v.  Smith,  17  Wend. 

2T  Com'th  V     Standard   Oil  Co.,  (iNf.Y.)88;  Suffolk  li'k  v.  Worccs- 

101  Pa.  St.  119,  150.  terP>  k,  5  Pick.  (Mass.)  lOti;  Palmer 

i's  Ibid.     But  a  percentage   thus  v.  York  B'k,  18Me.  106. 

added    becom'-s  part  of  the    tax.  •'"  Reed  v.   Norlhfield,   13  Pick, 

leulilled   to   the  same  priority  the  Mass.)  94. 

law  gives  to  the   latter   over  other  s- j^Ia.Kwell  v.  Rives.  11  Ncv.  213. 

lens   on     laud:    Titusville's   App.,  s^  Merchant'.s    B'k,   v.   Bliss,   13 

108  Pa.  St.  GOO.  Abb.  Pr.  (X.  Y.)  225;  21  Id.  305. 


458  STRICT  CONSTRUCTION.  [§§  332,  33S 

relating  to  tlic  adininistnition  of  the  crlinlnal  law  necessarily 
penal  and  to  be  eonstrned  as  sncli  ;  as,  e.  g.^  an  act  relating 
to  offences  conunitted  on  board  of  boats  navigating  a  river 
or  canal,  not  creating  the  offences,  nor  prescribing  their 
))nnishnient,()r  altering  the  mode  of  trial, but  simply  declaring 
that  an  indictment  for  such  an  offence  may  be  found  in  any 
county  through  which  the  boat  may  pass." 

§  332.  Acts  Partly  Penal.  Frauds.— [It  is  quite  possible, 
that,  in  the  same  statute,  both  the  strict  and  the  liberal  con- 
struction may  be  applied.  It  has  been  said,  indeed,  that, 
where  an  act  is  both  penal  and  remedial,  it  will  bo  strictly 
construed,"  as  e.  </.,  an  act  allowing  one  occupant  double  the 
value  of  a  fence  built  by  him  for  the  other  on  account  of  the 
latter's  neglect  to  repair,^'  or  a  statute  authorizing  arrest  and 
imprisonment  for  debt."  But  "there  is  no  impropriety  iu 
putting  a  strict  construction  on  a  penal  clause,  and  a  liberal 
construction  on  a  remedial  clause,  in  the  same  act.'"*  Thus,, 
where  an  act,  in  the  nature  of  a  police  regulation,  such  as 
j'cquires  fencing  along  j-ailroads,  etc.,  gives  a  remedy  for  a 
private  injury  resulting  from  its  violation,  and  also  imposes 
lines  and  penalties  for  the  same,  as  an  offence  against,  and 
at  the  suit  of,  the  public,  it  has  been  held  that  the  former 
provision,  giving  damages  to  persons  whose  stock  is  injured, 
will  not  be  regarded  as  penal,  nor  the  recovery  thereunder 
treated  as  a  penalty,  unless  expressly  so  declared.^'  And  it 
is  said,''"  and  has,  indeed,  already  been  intimated,"  that  a 
proviso  in  a  penal  statute,  which  is  favorable  to  the  defendant,. 
is  to  be  liberally  interpreted  in  his  behalf. 

§  333.  [In  construing  statutes  against  frauds,  it  has  been 
said,  that,  where  the  statute  acts  against  the  offender  and 
inflicts  a  penalty,  it  is  to  be  strictly  construed  ;  but  where  it 
acts  upon  the  offence  by  setting  aside  the  fraudulent  trans- 
action, it  is  to  be  construed  liberally.''*     An  instance  of  this 

^  People  V.  Hulsc,  3  Hill  (N.Y.)  355,  per  Best,  C.  J. 

309.  ='3  Pittsb.,    etc.,  R.    R.    Co.    v. 

«5  Abbott  V.    Wood,  23  31e.  541.  ISIethveii.  21  Ohio  St.  586. 

='"  Ibid.  ■'«  See  Bish.,  Wr.  L.,  §§  19G,  220. 

3'  lialhaway  V.  Johnson,  56  N.Y.  •»  Ante,  g  186. 

93.  ^'^  Gorton  v.  Cliampneys,  1  Bing. 

^*  Short  V.  Hubbard,  2  Bing.  349,  at    p.    301;    Cumming    v.    Fryeiv 


§  333]  STRICT    CONSTRUCTION.  459 

construction  is  afforded  by  tlio  decisions  under  the  9  Anne, 
c.  14,  against  gaming,  which  was  lield  to  be  remedial  wlien 
an  action  was  brongiit  by  the  party  injured,  but  penal,  when 
an  action  was  brought  by  a  common  informer."  It  has  been 
said,  somewliat  vaguely,  in  this  country,  that  "a  statute 
which  is  penal  as  to  some  persons,  provided  it  is  beneficial 
generally,  may  be  equitably  construed;""  and  that  "laws 
enacted  for  the  prevention  of  fraud,  for  the  suppression  of  a 
public  wrong,  or  to  effect  a  public  good,  are  not,  in  the  strict 
sense,  penal  acts,  although  they  may  inflict  a  penalty  for 
violating  them;""  and  upon  that  principle,  revenue  laws 
were  held  not  to  be  penal,  nor  subject  to  the  rules  of  strict 
construction,  but  to  require  such  interpretation  "as  most 
effectually  to  accomplish  the  intention  of  the  Legislature  in 
passing  them;""  and  in  Maine,  an  act  giving  damages 
against  any  person  assisting  a  debtor  to  defraud  his  creditor, 
to  double  the  amount  of  the  propi  I'ty  fraudulently  concealed 
or  transferred,  was  held  not  to  be  a  penal  statute."  No  doubt, 
"  where  grievances  have  to  be  redressed,  or  property  to  be 
protected,  there  are  offenders  as  well  as  suffei'ers,  assailants  as 
well  as  assailed.  The  act  which  gives  a  remedy  to  one  who 
is  aggrieved  almost  inevitably  inflicts  a  penalty  on  his 
opponent ;  '  every  statute  is  penal  to  somebody.'  But  if 
the  primary  object  of  the  act  is  redress,  and  not  punishment, 
it  is  to  be  construed  liberally.  '  The  legal  distinction  between 
remedial  and  penal  statutes  is  this:  that  the  former  give 
relief  to  the  parties  grieved,  the  latter  impose  penalties  upon 

Dudley  (Ga.)  182;  Bisli.,   Wr.   L.,  struct  ion  of  Statutes,  etc..  makes. 

§   192,    ret'eniug   to   Cumming  v.  the    following  note  to  the  above 

Fryer,  supia;  Carey  v.  Giles,  9  Ga.  utterance:    "It   may  be  permitted 

253;  Smith  v.   Moffat,  1  Barb.  (N.  to    us    to    ask     with      defeience, 

Y.)  65;  Ellis  v.    Whitlock,  10  ]\Io.  whether    all     laws    must    not    be 

781.     And  see  ITahn  v.  Sainion,  20  suppo.sed    intended     to    '  elTect    a 

Fed.  liep.    301.     The   liberal  con-  public    good  ;'    and    whether   the 

struction  of  statutes  against  usury  effort  '  to  accomplish  the  intention 

.seems,  as  least  in  pari,  based  upon  of  the  Legislature'   should  be  any 

this  principle.     See   Gray  v.   Ben-  more  earnest  in  this  case   than  in 

nett,  3  Met.  (Mass.)  522.  ^  all    others."      Certainly,    criminal 

"Bones    v.     Booth,    2    W.    Bl.  lawsare  most  emphatically  intended 

1220.  to  "effect    a    public    good,"— the 

"  Sickle?.  V.    Sharp,    13    Johns,  more  hitrhly  penal,  the  greater  the 

(N.  Y.)  497.  good. 

*^  Taylor  V.  U.  S.,  3  How.  197.  *''   Frohock    v.    Pattee,  38    Me. 

«  Ibid.      See   post,   §  346.     Mr.  103.     Comp.  ante,  §  330. 
Sedgwick,  in  his  work  on  the  Con- 


-460  STRICT    CONSTPUCTION.  [§  334 

offences  cotnmitteil.'  ""  It  would  follow  that  the  coiisrrnc- 
tion  should  be  strict  or  liberal,  accordingly  as  the  desii^'u  to 
give  redress  or  to  impose  penalties  should  appear  to  lie  at  the 
bottom  of  the  enactment ;  or  strict  as  to  one  part  and  liberal 
as  to  another,  where  sevcral)le,  if  the  one  is  confined  to 
punishment,  and  the  other  extends  to  redress.] 

§  334.  Degree  of  strictness  to  be  Applied.  Illustrations. — The 
dei2:ree  of  strictness  applied  to  the  construction  of  a  penal 
statute  depended  in  great  measure  on  the  severity  of  the 
statute.  When  it  merely  imposed  a  pecuniary  penalty,  it 
was  construed  less  strictly  than  where  the  rule  was  invoked  in 
favorem  vitge.'"'  But  the  rule  of  strict  construction  requires, 
at  least,  that  no  case  shall  fall  within  a  penal  statute  which 
does  not  comprise  all  the  elements  which,  whether  morally 
material  or  not,  are  in  fact  made  to  constitute  the  offence  as 
defined  by  the  statute,  [It  is  not  intended  to  make  this 
chapter  a  treatise  upon  criminal  statute  law,  or  to  examine, 
with  any  degree  of  minuteness,  the  decisions  upon,  and  in 
construction  of,  such  statutes.  An  attempt  to  do  so  would 
lead  to  proportions  entirely  incompatible  with  the  general 
scope  of  this  work,  and  would  trench,  to  a  corresponding 
extent,  upon  the  province  of  works  upon  that  particular 
subject.  All  that  is  here  designed  is  to  lay  down  those 
general  principles,  belonging  distinctively  within  the  limits  of 
a  work  upon  the  interpretation  of  statutes,  without  the  state- 
ment of  which  a  discussion  of  this  subject  would  remain  in- 
complete, and  to  cite  a  few  instances  merely,  illustrative  of  the 
propositions  laid  down,  referring  the  reader,  for  a  more  ex- 
haustive examination  and  detailed  comparison  of  decisions,  to 
such  works  as  Mr.  Bishop's  Treatise  upon  Statutory  Crimes. 
As  an  illustration,  then,  of  the  principle  just  stated,  it  may 
be  remembered  that]  a  person  cannot  be  convicted  of  perjui-y 
if  the  oath  was  administered  by  one  who  had  not  legal 
authority  to  administer  it,  as  in  the  case  of  an  affidavit  in  the 

"8  Wilb.,  pp.  232-233.  cit.     Piatt  that  the  rule  of  strict  construction 

V.  Sheriffs  of  London,  Plowd.  at  is  confined  to  criminal  statutes  of 

p.  36,  and    Hnnlingtovver   v.   Gar-  a  liicihly  penal  character,  and  lias 

diner,   1  B.  A;  C.  at  p.  299.  no  ai)piication  in  the  construction 

■^    It    is,   indeed,    intimated,  in  of    acts     crealing    or      punishing 

Randolph   V.    State,    9    Tc.x.    521,  mere  misdemeanors. 


§  334]  STRICT  CONSTRUCTION.  461' 

Admiralty  sworn  before  a  Master  in  Chancery,  though  the 
Admiralty  was  in  the  habit  of  admitting  affidavits  so  sworn 
{a).  An  act  which  made  it  penal  to  personate  "  any  person 
onlitlcd  to  vote"  would  not  be  violated  by  personating  a 
dead  voter  (IJ) ;  [nor  an  act  prohibiting,  under  penalties,  a 
person  from  ''voting  at  any  election  who  is  not  entitled," 
or  "  out  of  the  county,  or  city,  or  town  of  his  residence," 
by  a  voter's  voting  at  an  election  for  municipal  officers  out 
of  the  ward  of  his  residence/"]  An  agent  entrusted  with 
money  to  invest  on  mortgage  is  not  liable  to  conviction  for 
embezzling  it,  under  an  Act  which  makes  it  a  7iiisdemeanor 
in  an  agent  to  misappropriate  property  entrusted  to  him  "for 
safe  custody"  (c).  [Nor  does  an  act  making  the  embezzle- 
ment or  fraudulent  conversion  of  money,  goods,  etc.,  to  be 
carried  for  hire,  larceny,  cover  the  case  of  such  misappropri- 
ation of  goods  received  on  storage."]  The  Act  which  pun- 
ishes the  administration  ot"  a  noxious  drug  would  not  include 
a  substance  which  is  not  in  itself  poisonous,  but  noxious  only 
when  given  in  excess,  as  cantharides  {d).  The  Metropolis 
Local  Management  Act  of  1862,  in  incorporating  the  powers- 
for  the  "  suppression  "  of  nuisances,  conferred  by  an  earlier 
local  Act,  which  contained,  besides  several  provisions  forget- 
ting rid  of  existing  nuisances,  a  prohibition  against  keepings 
pigs,  was  held  not  to  have  comprised  this  last  provision,  as  the 
effect  of  it  was,  not  to  "  suppress,"  but  to  prevent  the  creation 
of  nuisances  (<?).  Where  on  Act,  after  providing,  by  one 
section,  that  any  building,  built  or  rebuilt,  except  on  the 
site  of  a  former  dwelling,  should  not  be  "  used  "  as  a  dwell- 
ing, unless  there  w^as  an  open  space  of  twenty  feet  in  front 
of  it,  without  the  previous  consent  of  the  local  board, 
imposed,  by  another,  a  penalty  if  any  building  or  work  were 
"  made  or  suffered  to  continue  "  contrary  to  the  provisions  of 

(a)  R.  V.  Stone,   23  L.    J.   M.  C.  R.  &  R.  324. 

14.     [8.   P.,  Slmfrer  v.  Kintzer,  1  ^o  Nettles  v.  State,  49  Ala.  35. 

Binn.  (Pa.)  537;  Pliillipi  v.  Bowen,  (c)  24  &  25  Vict.   c.  96,  .s.  70  ;  R. 

2  Pa.  St.  20.]  V.  Newman,  51  L.  J.  U.  C.  b7. 

(5)  Whitcey  v.  Chappell,  L.   R.  '•  Slate  v.  Stollcr.  38  Iowa,  321. 

4  Q.  B.  147.    See,  also,  R.  v.  Brown,  (d)  R.  v.  Uennali,  13  Cox,  547. 

2  East,  P.  C.  1007.      It  would  be  {<'}   Chelsea   Vestry   v.  King,  17' 

different  if  the  offence  were  per-  C.  B.  N.  S.  G25  ;  34  L.  J.  :M.  C.  9. 

sonatiiig  a  person    "supposed    to  See    Great    Western     R.    Co.     v.. 

be  eutitk'd  to  vote  :"  R.  v.  Martin,  Bishop,  L.  R.  7  Q.  B.  550. 


402  STRICT  CONSTRUCTION.  [§  335 

the  Act  ;  the  Court  refused  to  construe  tlie  hitter  section  as 
inchi(lii\ii:  tlie  offences  prohibited  in  the  former,  tliough  the 
effect  of  the  decision  was  to  leave  theiu  witliont  specific 
provision  for  their  punishment  {a).  [An  act  imposing  a 
penalty  for  ])reach  of  duty  in  case  of  had  faith,  partiality  or 
discriiuinati<jn,  does  not  punish  a  nu!re  act  of  neglect."] 

§  335.  Exclusion  of  New  Things  by  Rule  of  strict  Construction. 
— Again,  as  illustrative  of  the  rule  of  strict  construction,  it 
has  been  said  that  while  remedial  laws  n)ay  extend  to  new 
things  not  in  esse  at  the  time  of  making  the  statute  {h), 
penal  laws  may  not.  Thus,  the  30  Eliz.  c.  12,  which  took 
away  the  benefit  of  clergy  from  accessories  after,  as  well  as 
before,  the  fact,  was  held  not  to  extend  to  accessories  made 
by  subsequent  enactment.  The  receiver,  therefore^  of  a 
stolen  horse,  who  was  made  an  accessory  by  a  later  statute, 
was  held  not  ousted  (c).  AYhere  one  Act  (24  &  25  Vict.  c. 
96,  s.  91)  made  it  felony  to  receive  with  guilty  knowledge  a 
chattel,  the  stealing  of  which  was  felony  either  at  common 
law  or  under  that  Act ;  and  a  subsequent  one  (31  &  32  Vict. 
c.  116)  made  a  partner  who  stole  partnership  property  liable 
to  conviction  for  the  stealing,  as  though  he  had  not  been  a 
partner;  it  was  held  that  to  receive  such  stolen  property  was 
not  an  offence  under  the  earlier  Act  {d).  The  Stock  Job- 
bing Act,  which,  after  referring,  in  the  ])reamble,  to  the 
great  inconveniences  which  had  arisen,  and  daily  arose  by 
the  wicked  practice  of  stock  jobbing — diverting  men  from 
their  ordinary  pursuits,  ruining  famili(\s,  discoui'aging  in- 
dnstr}',  and  injuring  commerce — declaied  void  all  such  con- 
tracts "  in  any  public  or  joint  stock,  or  other  public  securi- 
ties whatsoever,"  was  held,  notwithstanding  the  mischief  in 
view,  and  the  wide  terms  used,  not  to  apply  to  transactions 

(a)  Pearson   v.  Hull,  3   11.  &   C.  W.  U.  T.  Co.   v.  Rood,  9G  Id.  195  ; 

921,  3oL.  J.  M.  C.  44;  diss.  Mar-  W.  U.  T.    Co.   v.  Kiiiuey,   lOG  id. 

tin.    li.     Spo  another    exumpl(!    in  4G8)   or   any    one    other   than    I  In; 

Elliott  V.  Majeudie,  L.  It.  7  C^.   B.  .sender  could   lecover  the  penalty, 

42'J.  was  not  decided  in  this  ca.*e. 

'"-   West.    Union      Tel.     Co.     v.  {/>)    2     lust,     oa  ;     per    cur.     in 

Steele,    108   Ind.     163.      Whether  Dawes   v.    Painter,    Freem.  K.  15. 

under  the  act  referred  to,  relating  176.     Sup.  §  112. 

to  the  sending  of  te]egrai)hic  raes-  (c)  Fost.  Cr.  L.  37'2.     See  §  85. 

sages,  the  sender  alone  (See  W.  U.  {d)  R.    v.   Smith,  L.   R.   1    C.  C. 

Tel.  Co.  V.  Pendleton,  95  Ind.  \2  ;  270. 


§  335]  STRICT  CONSTliUCTIOX.  4G3 

in  foreign  funds  (a)  or  iii  railway  shares  {b),  on  the  ground 
tliat  the  former  were  not  dealt  in,  and  the  latter  were  not 
Icnown  in,  England,  when  the  Act  was  passed.  [Nor  does 
an  act  making  void  seenrities  given  for  mono}'  lost  in  "  cock- 
fighting,  bullet-playing,  or  horse-racing,  or  at  or  upon  any 
game  of  address,  game  of  hazzard,  play  or  game  whatsoever," 
embrace  a  bond  given  by  way  of  margin  in  a  stock  gambling 
transaction  ;"  although  the  transaction  is  clearly  a  gambling 
transaction."  Upon  the  same  principle,  at  least  in  part,  a 
wager  upon  the  result  of  a  primary  election  was  held  not  to 
be  a  penal  offence  within  the  Pennsylvania  acts  of  1817  and 
1839,  ])unishing  wagers  upon  the  results  of  elections,  since,  at 
the  time  of  the  passage  of  those  acts,  "  primary  elections  " 
were  unknown  in  that  state."]  But  the  degree  of  strictness 
[indicated  by  the  English  decisons  above  referred  to]  may  be 
regarded  as  extreme.  It  could  hardly  be  contended  that  print- 
ing a  treasonable  pamphlet  was  not  an  offence  against  the 
statute  of  Edw.  3,  because  printing  was  not  invented  until  a 
century  after  it  was  passed  ;  or  that  it  would  not  be  treason  to 
shoot  the  Queen  with  a  pistol,  or  poison  her  with  an  Ameri- 
can drug  (c).  The  55  Geo.  3,  c,  58,  s.  2,  which  enacts  that 
no  brewer  or  dealer  in  beer  shall  have,  or  put  into  beer,  any 
liquor  for  darkenirig  its  color,  or  use  molasses  or  any  prepara- 
tion in  lieu  of  malt  and  hops,  under  a  penalty  of  2001.,  was 
held  not  to  be  confined  to  such  dealers  as  were  known  at  the 
time  when  the  Act  was  passed,  viz.,  licensed  victuallers, 
licensed  by  a  magistrate  under  the  Act  of  5  &  6  Edw.  6,  c. 
25  ;  but  to  include  the  retailer  of  beer  furnished  with  an  excise 
license,  who  first  came  into  legal  existence  under  the  1  Wm. 

(a)  7  Geo.  2,  c.  8,  repealed  by  23  to  same,  and  Coni'th  v.  Howe,  144 
Vict.  c.  28  ;  Henderson  v.  Bise,  3  Mass.  144,  there  cited.  In  Com'th 
Stark.  158 ;  Wells  v.  Porter,  2  v.  Wells,  supra,  the  construction 
Bing.  N.  C.  722 ;  comp.  Smith  v.  excluding  primary  elections  was 
Lindo,  5  C.  B.  N.  S.  587,  27  L.  J.  confirmed  by  reference  to  the 
196.  object  of  the  enactments,  and  the 

(b)  Hewitt  V.  Price,  4  M.  &  Gr.  context  thereof  ;  ami  it  was  said 
355.  that  the  act  of  1881,  regulating  and 

^*  Griffiths  V.  Sears,  112  Pa.  St.  punisliing  frauds  in  primary  elec- 

523.  tions  did  not  bring  the  latter  within 

'•*  Ibid.  :  McCormick  V.  Nichols,  the  i)urview   of  the  act  of  1839. 

19  111.    App.   334;  and   see    ante,  Comp.  post,  §  338,  Britt  v.  Robin- 

§  138.  sou.  L.  H.  5  U.  P.  503. 

"  Com'th  V.  Wells,  110  Pa.   St.         (c)  Hallam,  Const.  Hist.  c.  15. 
463.     See  ante.  §  100,  and  note  182 


464:  STRICT  CONSTRUCTIOX.  [§  336 

4,  c.  04  (a).  Tlie  8  Anne,  c.  7,  whicli  enacted  that  if  any 
sort  of  prohibited  pjoods  slionld  be  hmded  without  paj'mcnt 
of  duty,  tlie  offender  should  forfeit  treble  value,  was  held 
to  extend  to  gloves,  which  ^vere  not  prohibited  until  the  6 
Geo.  3  (b).  A  market  Act  which  prohibited  the  sale  of 
provisions  in  any  part  of  the  town  but  the  market  place, 
would  extend  to  parts  of  the  town  built  after  the  Act  was 
passed  on  what  were  then  fields  (<?).  It  was  held  that  the  8 
Geo.  2,  c.  13,  which  imposed  a  ])enalty  for  piratically 
engraving,  etching,  or  otherwise,  or  "  in  any  other  manner," 
copying  prints  and  engravings,  applied  to  copying  by  pho- 
tography, though  that  process  was  not  invented  till  more  than 
a  century  after  the  Act  was  passed  {d).  Bicycles" were  held 
to  be  carriages  within  the  provision  of  the  Highway  Act 
against  furious  driving,  and  tricycles  propelled  by  steam  to 
be  locomotives  within  the  Locomotive  Act  of  1865,  though 
not  invented  when  those  Acts  were  passed  (e). 

^  33G.  Treatment  of  Omissions  in  Acts  vhthin  Rule  of  Strict 
Construction. — The  general  prinei{)le  in  question  is  well 
exemplified  by  comparing  the  manner  in  which  an  omission 
which,  it  was  inferable  from  the  text,  was  the  result  of 
accident,  has  been  generally  dealt  with  in  penal  and  in 
remedial  Acts.  Thus,  where  the  owner  of  mines  was 
required,  under  a  penalty,  in  case  (1)  of  loss  of  life  in  the 
mine  by  accident,  or  (2)  of  personal  injury  arising  from 
explosion,  to  send  notice  of  such  accident  to  an  inspector 
within  twenty-four  hours  "  from  the  loss  of  life  "  (omitting 
the  case  of  personal  injury),  the  Court  refused  to  supplj-,  in 
order  to  make  the  defendant  liable  to  a  conviction,  the 
obvious  omission  in  the  latter  branch  of  the  sentence,  and 
lield  that  notice  was  not  necessary  when  personal  injury  from 
explosion,  short  of  loss  of  life,  had  occurred  ;  although  the 
mention  of   such   injury  in  the   earlier  part  of  the  sentence 

(a)  Atty.-Genl.  v.  Lockwood,  9  (d)  Gambart  v.  Ball.  14  C.  B.  N. 
M.  &  W.  378.  S.  30G,  32  L.  J.  166;  Graves  v.  Ash- 

(b)  Atly.-Genl.  v.  Saggers,  1  Prl.      fonl,  L.  R.  2  C.  P.  410. 

182.  (0  Taylor  v.   Goodwin,  4  Q.  B. 

(r)  Collier  v.  Worth,    1    Ex.  D.  D.  228;  Parkins  v.  Prcist,  7  Q.  B. 

4G4.      Sec  R.  v.  Cottle,   16  Q.  B.  D.   313.     [Couip.,  oh  this  subject^ 

412,  and  Millon  v.  Faversham,  10  ante,  §  112.] 
B.  &  S.  548. 


^  336]  STRICT  CONSTRUCTION. 


465 


was  idle  and  insensible  without  such  an  intei-polation  {a). 
The  5  &  6  W.  4,  c.  63,  s.  28,  which  empowered  inspectors  to- 
examine  "weiglits,  measures,  and  scales,"  in  shops,  and  if 
upon  examination  it  appeared  that  "the  said  weights  or 
measures "  (omitting  scales)  were  light  or  unjust,  to  seize- 
them,  was  held  not  to  authorize  a  seizure  of  scales  {b).- 
[So,  acts  for  testing  weights  and  measures  and  imposing  a 
penalty  for  "selling"  with  unmarked  weights  and  measures, 
will  not  apply  to  "  buying  "  with  such  weight  or  measures."] 
The  Municipal  Corporations  Act  of  William  4,  after 
empowering  the  borough  justices  to  appoint  a  clerk  to  the 
justices,  provided  that  it  should  not  be  lawful  to  appoint  to 
that  office  any  alderman  or  councillor,  and  provided  that  the 
clerk  should  not  prosecute  any  offender  committed  for  trial, 
enacted  that  any  person  "  being  an  alderman  or  councillor  " 
who  should  act  as  clerk  to  the  justices,  or  "  shall  otherwise 
offend  in  the  premises,"  should  forfeit  lOOZ.,  recoverable 
by  action.  This  clearly  did  not  reach  a  clerk  who  prosecuted 
offenders  committed  by  the  justices,  if  he  was  not  an  alder- 
man or  councillor;  and  yet  the  manifest  intention  seemed  to 
be  that  he  should  bo  subject  to  the  penalty  for  either  or  both 
offences,  of  acting  if  disqualified,  and  of  prosecuting.  But 
to  effectuate  this  intention,  it  would  have  been  necessary  to 
interpolate  the  words  ''any  other  person  who"  before 
'•  shall  otherwise  offend  ;"  and  this  the  Court  refused  to  do 
for  the  purpose  of  bringing  a  person  within  the  penal  enact- 
ment {() ;  though  also  relieving  him  from  indictment  {cT). 
So,  the  Court  refused  to  supply  a  casus  omissus  under  the 
Vaccination  Act  of  1871,  as  it  was  an  enactment  creating  an 
offence  ie).  If  the  statutes,  in  these  cases,  had  been  reme- 
dial, the  omission  would  probably  have  been  supplied  (/). 

{a)  Underhill  v.  Lon!J:rid2;e,  29  L.  {c)  Coe  v.  Lawrence,  1  E.   &  B.. 

J.  M.    C.    65;  comp.    Williams  v.  51G,  23  L.  J.  140. 

Evans     1    Ex.  D.  277,  cited  inf.  g  (r/)  Per  Coleridge.  J.  See,  also,  R. 

338.  V.  Davis.  L.  R.  4  C.  C.  372.     See 

(j)  Thomas  v.  Steplienson.  3  E.  Exp.  National  Mere.  Bank,  15  Cb. 

&  B.  108.  33  L.  J.  358.     [See  Emer-  D.  43.  snp.  §  30. 

son  V.    Com'lh,    108  Pa.    St.    Ill,  (c)  Broadbead  v.  Iloldswortb,  2- 

post,  ^  r,53.  as  to    "natural  gas"  Ex.  D.  331. 

companies.]  (/)  Re  Wainwiigbt,  1  Pbil.  258,_ 

6fi  Soutbw.  R.  R.  Co.  V.  Cobcn,  snp.    p.    303.     [Comp.,    npon   this. 

49    Ca.    637.     See,  also,  CbalTer's  subject,  ante,  §  399,  and  cases  tberer 

App.,  5GMicb.  344,  post,  §  343.  cited.] 
30 


400 


STRICT  CONSTKL'CTKtN.  [>?  '^>->T 


§  337.  Qualifications  of  Rule  of  Strict  Construction.   Modern  Ten- 
^jgncy.— Tho  rule  of  h^trict  constnuttioii,  however,  whenever 
invoked,  conies  attended  with  (|nalilic;itu»ns  and  other  rules  no 
less  important ;  and  it  is  hy  the  lii^ht  which  each  contributes 
that  the  meaning  must  be  determined  («).  Among  them  is  the 
rule  that  that  sense  of  the  wonls  is  to  be  adopted  which  best 
Jiarmonizes  with  the   context,    and   promotes  in  the  fullest 
manner  the   policy   and   object   of  the  Legislature."     [It  is 
siaid  that  words  descriptive  of  an  ofJence  or  its  punishment, 
are  not  to  be  bent  on  the  one  side  or  the  other.''     They  are 
to  be  construed  by  reference  to  the  sul)ject-matter,"'  and  the 
context,  the  apparent  policy  nnd  objects  of  the  Legislature;" 
by  the  whole  context,  not  by  a  mere  division  into  sections, 
so  as  to  give  effect  to  the  objects  and  intent  of  the  whole,"' 
US  well  as  by  a  comparison  of  statutes  in  pari  materia,"  and 
consequently,  the  old  law,  the   mischief  and  the  remedy."'] 
The  j)aramouut  object,  in  construing  penal  as  well  as  other 
statutes,  is  to  ascertain  the  legislative  intent ;  and  the  rule  of 
strict  construction  is  not  violated  by  permitting  the  words  to 
luive    their    full    meaning,  or  the    more    extensive    of  two 
meanings,  when  best  effectuating  the  intention  {b).     They 
arc.  indeed,   frequently  taken  [not  in  their  strict  techincal 
sense,  if  that   would  defeat,  but  in  a  more  popular  sense,  if 
that    will    uphold,   and    carry    out,    the     intention     of    the 
Legislature,"'  but]  in  the  widest  sense,  sometimes  even  in  a 
sense  more  wide  than  etymologically  belongs  or  is  popularly 
attached  to  them,  in  order  to  carry  out  effectually  the  legis- 
lative intent,  or,  to  use  Lord  Coke's  words,  to  suppress  the 
mischief  and  advance  the  remedy  (c).     [Nor  is  the  rule  of 
strict  construction  ever  violated  by  permitting  the  words  of 
a  statute  to  have  their  full  meaning,"  or  by  the  application 

(a)  Per  cur.  in  U.  S.  v.  ITartwoll,  (b)  U.    S.    v.    llartwcll,  G   Wall. 

<i  Wallace,  ;}S5,  395.  885.  ;5!)5.     [And   Sfc   JMorclicad   v. 

:,:  ii,i,i.        '  B'k,  41  N.  J.  Eq.  Ofit.] 

'*>  Mayor  v.   Davis,  6  ^Vatts  &  S.  "  ttoo  U.  S.   v.  Atlious  Armory, 

(Pa.)  2&,),  277,  per  Gibson,  V.  .1.  2  Abb.  U.  S.   12v),  wlicre   "  prize  " 

=•9  Ibid.  ;     Cora'th   v.    Lorin<x,    8  and  "  eapture"  were  held  not  con- 
Pick.  (Mass.)  ;;70,  ;57:];  11.   v.   Vlod-  lined  lo  caplures  at  sea. 
nott,  1  T.  R.  96.  ('•)  lloydon's    Case.    3   Hep.    7b. 

«»  Pike  V.  Jenkins,  12  N.  II.  255.  [And  see    Parkinson   v.    State,    14 

c  Tlie  Harriet.  1  Story,  251.  Md.  184.] 

*'^  ]\Iayor  v.  Davis,  siiprji.  "  State  v.  Powers,  30  Conn.  77. 

«3  See  Ibid.;  ante.  §28. 


^  337]  STKICT  CONSTRUCTION.  467 

of  conimon  sense  to  its  terms,  in  order  to  avoid  an 
absurdity/*  Tiiey  are,  therefore,  to  be  lield  to  embrace 
every  case  within  the  mischief,  if  also  fairly  within  the 
words"^  read  with  such  corrections  as  the  court  may  make  to 
avoid  insensibility.'*  To  illustrate  :]  imder  the  Statute  which 
makes  it  a  misdemeanor  knowingly  to  utter  counterfeit  coin 
is  included  a  genuine  coin  from  which  the  milling  has  been 
filed  and  replaced  by  another  {a).  Although  the  Act  which 
punishes  a  man  for  running  away  from  his  wife  and 
"  children,"  thereby  leaving  them  chargeable  to  the  parish, 
applies  only  to  the  desertion  of  legitimate  children,  this 
rests,  not  on  any  indisposition  to  depart  from  the  strict  and 
narrow  meaning  of  the  word,  but  on  the  ground  that  the 
object  of  the  Legislature  was  limited  to  the  enforcement  of 
the  man's  legal  obligation,  which  did  not  extend  to  the 
support  of  his  illegitimate  children  (b).  But  the  statute 
which  made  it  a  criminal  offence  to  take  an  unmarried  girl 
from  the  possession  and  against  the  will  of  her  father  or 
mother,  was  held  to  apply  to  the  case  of  a  natural  daughter 
taken  from  her  putative  father  (c)  ;  for  the  wider  construction 
obviousl)'  carried  out  more  fully  the  aim  and  policy  of  the 
enactment.  The  "  taking  from  the  possession,"  again,  in 
the  same  enactment,  is  construed  in  the  widest  sense, 
implying  neither  actual  nor  constructive  force,  and  extending 
to  voluntary  and  temporary  elopements  made  with  the  active 
concurrence  of  the  girl  {d).  The  "  breaking  "  required  to 
constitute  burglary  includes  acts  which  would  not  be  so 
designed  in  popular  language  ;  such  as  lifting  the  flap  of  a 
cellar  (e),  or  pulling  down  the  sash  of  a  window  {f),  or  raising 

«°  Com'th    V.    Loriug,    8    Pick.  2  Stra.  1162;  and  see  R.  v.    Hod- 

(Mass.)  870,  373.  iiett.  1  T.  R.  96. 

6^  HuSman  v.  State,  29  Ala.  40.  (fZ)  R.  v.  Robins,  1  C.  &  K.  456  ; 

«8  See  Turner  v.  State,  40  Ala.  R.    v.    Kipps,  4  Cox,   167  ;   R.    v. 

21;  U.  S.  V.  Stern,  5  BlatcUf.  512;  Biswell,  2  Cox,  279  ;  R.  v.  M;;nkte- 

aute,  §  299.  low,  Dears.  159,  22  L.  J.  M.    C. 

(a)  R.  V.  Hermann,  4  Q.  B.  D.  115  ;  R.  v.  Timrains,  Bell,  276,  30 
284.  L.  J.  M.  C.  45. 

(b)  R.  V.  Maude,  2  Dowi.  N.  S.  (e)  Brown's  Case,  2  East,  P.  C. 
58;  Westminster  v.  Gerrard,  2  417  :  R.  v.  Russell.  1  Moo.  C  0. 
Bulst.  346.  377.     Comp.  R.  v.  Lawrence,  4  C. 

(c)  4  &  5  Ph.  &  M.  c.  8,  24  &  25  &  P.  231. 

Vict.  c.  100,  s.  55;  R.  v.  Cornforth,         (/)  R.  v.  Haines,  R.  2  Moo.  451. 


4()S  8TKICr  CONSTRUCTION.  [§  33T 

:i  hitch  (a),  or  even  (lescencling  a  chiinney,  for  that  is  as 
much  ch)sed  as  the  nature  of  things  permits  (l).  A 
tlireatening  letter  is  "sent"  when  it  is  dropped  in  the  way 
of  the  person  for  wlioiii  it  is  destined,  so  that  he  may  pick 
it  up  (c)  ;  or  is  attixed  in  some  i)hice  where  he  would  i)e 
likely  to  see  it  (r?)  ;  or  is  placed  on  a  public  road  near  his 
house,  so  that  it  niay,  however  indii'ectly,  reach  him,  which 
it  eventually  does  after  passing  through  several  hands  (r-)  ; 
although  in  none  of  these  cases  would  the  paper  be  ])opularly 
said  to  have  been  "  sent."  To  make  false  signals,  and  thereby 
to  l)ring  a  train  to  a  stand  on  a  railway,  was  held  to  be  within 
t!ie  enactment  which  made  it  an  offence  to  "obstruct"  a 
railway  (y) ;  and  an  enactment  which  makes  it  a  mis- 
demeanor to  do  anything  to  obstruct  an  engine  or  cari-iaga 
nsing  a  railway,  was  held  to  include  railways  not  yet  open  to 
])ubnc  traflic,  and  to  apply,  though  no  engine  or  carriage 
was  obstructed  {(f).  A  person  "  snffers"  gaming  to  go  on  in 
his  house  who  purj^oseh^  abstains  from  ascertaining,  or 
purposely  goes  ont  of  reach  of  seeing  or  hearing  it  (A).  An 
Act  which  mad(;  it  penal  to  "  administer  "  or  "  to  cause  to  be 
taken,"  a  noxious  drug,  to  procure  abortion,  would  be 
violated  by  one  who  supplied  such  a  drug  to  a  woman,  and 
explained  to  her  how  it  was  to  be  taken,  and  she  afterwai'ds 
took  it  accordingly,  in  his  absence  (i).  And  a  man  supplies 
such  a  drug,  "knowing  it  to  be  intended"  to  procure 
abortion,  if  he  so  intended  it,  though  the  woman  did  not{j). 

(a)  U.  V.  Jordan,  7  C.  P.  4:52.  («•)    R.     v.     Jepsoii,    and     R.    v. 

(h)l    Iliiwk.  c.    38,  s.  4;   R.  v.  Lloyd,  2  East,  P.    C.   1115.   1122; 

Brice,  R.  &  R.  450.     [Donolioo  v.  R.  v.  Wagst.-iff.  R.  &  R.  31)8. 
State.  30    Ala.    281.]     Lord    Hale,  (d)  R.  v.  Williams,  1  Cox,  IG. 

who  doubted  wbc'liujrllie  lalt{;r  act  (<?)  R-    v.  Griinwade,  1  Den.   30; 

was  a  breaking,  was  relieved  from  and  sc.'e   R.  v.  Jones,  1  Cox,  07  ;  5 

decidini^    tbe    point    in    the    case  Cox.  220. 

before  him,  as  it  was  elicited  tliat  (/)  R.  v.  lladfield,  L.  R.  1  C.  C. 

some  biiclis  liad  becii  loosened  in  253  ;  R.  v.  Hardy,  Id.  278  ;  comp. 

the  thief's  descent,  which  sufliced  Walker  v.  lloiner,  1  Q.  J5.  I).  4. 
to  constitute  a  breaking:  1  Hale,  (17)  R.    v.    Bradford,    Bell,    208. 

552.   Indeed,  the  burglar  "  br(!aks  "  [Comp.   Lee   v.   Barkluimpsted,  46 

inio  a  house  if  Ik;  gets  admittance  Conn.  213,  ante,  J^  73.] 
by  inducing  liie  inmate  to  open  the  (A)  Redgatc  v.   Ilayues,  1   Q.   B. 

door  by  a  trick,  as  by  a  pretence  D.  89. 

of  business,  or  bv  rai>ing  an  alarm  (i)  R.  v.  Wilson,  D.   &  B.    127, 

of  fire  :  2  East.  P.   C.   485.     [See,  26  L.  J.  M.  C.  16  ;  R.  v.   Fariow, 

however.    State  v.  Henry,  9  Ired.  D.  &  B.  104. 
L.  (N.  C.)  403.J  0)  R.   V.  Hillmau,  L.  &  C.  343, 


«  338]  STRICT  CONSTIiUCTION.  469 

An  Act  which  prohibited  under  a  penalty  "  the  copying  of 
a  paintiui^  "  without  the  owner's  leave  was  held  to  reach  a 
photograph  of  an  engraving  which  the  proprietor  of  the 
painting  had  made  from  it  {a).  The  adulteration  Act,  1875, 
which  makes  it  penal  to  sell  an  adulterated  article  "to  the 
prejudice  of  the  purchaser,"  would  include  a  sale  to  an 
officer  who  makes  tlie  purchase,  not  with  his  own  money  or 
for  his  own  use,  but  with  the  public  money  and  for  the  pur- 
pose of  analysis  (h).  A  man  who  fires  from  a  highway  at 
game,  has  trespassed  on  the  land  of  the  owner  of  the  soil  on 
which  the  highway  runs ;  for  the  right  of  way  over  the  road 
is  only  an  easement,  and  if  a  man  uses  it  for  an  unlawful 
purpose,  he  becomes  a  trespasser  (<?) .  If  he  walks  with  a 
gun  with  intent  to  kill  game,  he  "  uses  "  the  gun  for  that 
purpose  without  firing,  within  the  statute  which  makes 
•using  a  gun  with  that  intent  penal  (d)  ;  and  the  offence  of 
"taking"  game  is  complete  when  the  game  is  snared, 
though  neither  killed  nor  removed  (e). 

§  338.  The  Corrupt  Practices  Prevention  Act  of  1854 
which  declares  that  whoever,  "directly  or  indirectly," 
makes  a  gift  to  a  person  to  induce  him  to  "endeavor  to 
pi-ocure  the  return  "  of  any  person  to  Parliament  shall  be 
deemed  gnilty  of  bribery,  was  held  to  extend  to  a  gift  made 
to  induce  its  recipient  to  vote  for  the  giver  at  a  preliminary 
test  ballot,  held,  for  the  purpose  of  selecting  one  of  three 
candidates  to  be  proposed  when  the  election  came.  In  vot- 
ing for  the  giver  at  the  test  ballot,  the  voter  indirectly 
"  endeavored  to  procure"  his  return  at  the  election  (/").  An 
enactment  which  prohibited  any  officer  concerned  in  the 
administration  of  the  poor  laws  from  "  supplying  for  his 
own  profit  "  any  goods  "  ordered  "  to  be  "  given  "  in  paro- 
chial  relief  to   any  person,  was  held  to  reach   a  guardian 

33  L.  J.  M.   C.  60  ;  comp.  R.  v.  (d)  5  Anne,   c.  14,  s.  4  ;  1  &  3 

Fretwell,  L.  &  C.  161,  31  L.  J.  M.  Wm.  4,  c.  32,  s.  28  ;  R.  v.  King,  1 

•C.  145.  Sess.  Ca.  88  ;  sec,   also,  U.  6.   v. 

(a)  Exp.  Beal,  L.  R.  3  Q.  B.  387.  Morris.  14  Peters,  464. 

(b)  Hoyle  v.  Hickman,  4  Q.  B.  {<■)  5  Geo.  3,  c.  14  ;  R.  v.  Glover, 
D.  233,  48  L.  J.  M.  C.  97.  R.  &  \l.  269. 

(c)  Mavbew  v.  Wardley,  14  C.  B.  ( f)  Britt  v.  Robinson,  L.  R.  5C\ 
N.  S.  550  ;  R.  V.  Pralt,  4  E.  &  B.  P.  50:!.  [Comp.  ante,  i^  335,  Convlh 
mo.  V.  Wells,  110  Pa.  St.  403.J 


470  STRICT    COXSTKDCTION.  [§  338 

wliose  partner  liad,  with  knowledge  of  the  facts,  sold  a  bed- 
stead to  the  relieving  ofHeer  on  behalf  of  the  parish  for 
delivery  to  a  pan[)er;  although  the  guai'dian  was  ignorant  of 
the  transaction,  the  bedstead  had  not  been  "  ordered  ''  by 
the  guardians  (a),  and  it  was  oidy  lent,  not  "given"  in 
parochial  relief  (^).  In  another,  the  occupier  of  an  enclosed 
ground,  who  admitted  the  public  on  it,  on  j)ayinent,  to  wit- 
ness a  foot-race  and  a  pigeon-match,  was  held  liable  to  con- 
viction for  having  used  the  place  for  the  purposes  of  betting, 
as  a  number  of  professional  betting  men  liad  obtained 
entrance  and  carried  on  their  business  there  with  his 
knowledge  ;  though  this  was  not  the  immediate  purpose  for 
which  he  had  thrown  the  grounds  open,  and  it  did  not 
appear  that  he  and  tlie  betting  men  were  in  any  way  con- 
nected in  their  business,  or  that  he  derived  any  profit  from 
it  (c).  The  Highway  Act  of  Will.  4,  which  enacted  that  if 
any  person  (1)  riding  a  iiorse,  or  (2)  driving  a  carriage,  rode 
or  drove  fui'iously,  "  every  person  so  offending"  should  be 
liable  on  conviction  before  a  magistrate  to  forfeit  five 
pounds,  if  "  the  driver  "  was  not  the  owner  of  the  carriage, 
and  ten  pounds  if  "  the  driver  "  was  the  owner  (not  men- 
tioning the  rider),  was  construed  as  making  the  rider,  who 
was  not  the  owner  of  the  horse,  as  well  as  the  driver,  liabh;; 
as  providing,  in  other  words,  that  while  the  owner  of  a  car- 
riage was  liable  to  a  penalty  of  ten  pounds,  the  offender  in 
all  the  other  cases  mentioned  w^as  liable  to  live  pounds  (</). 
An  Act  which  punished  the  obtaining  a"  valuable  security  " 
by  false  pretences  would  include  a  railway  ticket,  which  is 
evidence  of  a  right  of  being  carried  on  the  railway  (e). 

(a)  Greenhow  v.  Parker,  6  II.  &  L.  J.  M.  C.   67;  R.    v.   Beecliani.  5 

M.    882,    31    L.    J.     Ex.    4.     See  Cox.  181.     See  Marks  v.  Benjamin, 

Woolley  V.  Kay,  1  H.  «&  N.  307,  25  5  M.  &  W.  56r>.     But  one  whicli 

L.  J.  Ex.  351.  punished  ;ui  agent  who  in  violation 

(Ij)  Davies  v.  Harvey,  L.  R.  9  Q.  of  ii<K)(l  i'ailli,  and  enntiaiy  to  tlie 

B.  433;  Stanley  v.  Dodd,  1  D.  &  R.  purpose  of  iiis  trust,   sold,   uej^oti- 

184.    Com  p.  Proctor  v.Manwaring,  ated,    transferred,    pledged,    or   in 

3  B.  &  A.  145.  any  manner  converted  to  his  owa 

(r)  Eastwood  v.   Miller,  L.  R.  9  use     "  an}"^    chattel    or     valunl)le 

Q.  ]}.  440;  riaigh  v.   Sheffield,   L.  security'  with   which  he  was  in- 

R.  10  Q.  15.  103.  trusted,  woulil  not  include  a  policy 

((/)  Williams  v.  Evans,  1  Ex.   D.  of  insurance  intrusted  to  him  for 

277,    overruling    R.    v.    Bacon,    11  collection;  for  it  is  neither  a  chattel 

Cox.  510.  capable  of  sale  or  barter,  nor  yet  a 

('')  R.  V.  Boulton,  1  Deu.  508,  19  valuable  security,  for  this  implies 


§§  339,  340] 


STRICT    CONSTRUCTION. 


471 


§  330.  The  tendency  of  modern  decisions,  upon  the  wliole, 
is  to  narrow  materially  the  difference  between  what  is  called 
a  strict  and  a  beneficial  construction.  All  statutes  are  now 
construed  with  a  more  strict  regard  to  the  language,  and 
criminal  statutes,  with  a  more  rational  regard  to  the  aim  and 
intention  of  the  Legislature,  than  formerly."  It  is  unques- 
tionably right  that  the  distinction  should  not  be  altogether 
erased  from  the  judicial  mind  (a)  ;  for  it  is  required  by  the 
spirit  of  our  free  institutions  that  the  interpretation  of  all 
statutes  should  be  favorable  to  personal  liberty  (h)  ;  and  it 
is  still  preserved  in  a  certain  reluctance  to  supply  the  defects 
of  language,  or  to  eke  out  the  meaning  of  an  obscure  passage 
by  strained  or  doubtful  inferences  (c).  The  effect  of  the 
rule  of  strict  construction  might  almost  be  summed  up  in 
the  remark,  that  where  an  equivocal  word  or  ambiguous 
sentence  leaves  a  reasonable  doubt  of  its  meaning  which  the 
canons  of  interpretation  fail  to  solve,  the  benefit  of  the 
doubt  should  be  given  to  the  subject,  and  against  the  Legis- 
lature which  has  failed  to  explain  itself  (d).  But  it  yields 
to  the  paramount  rule  that  every  statute  is  to  be  expounded 
according  to  the  intent  of  them  that  made  it  (e)  ;  and  that 
all  cases  within  the  mischiefs  aimed  at  are  to  be  held  to  fall 
within  its  remedial  influence  (/"). 

§  340.  Acts  Encroaching  on  Rights. — Statutes  which  encroach 
on  the  rights  of  the  subject,  whether   as   regards   person  or 


that  money  is  payable  n'respeclively 
of  any  coritiiigeucy;  and  it  is  not 
capable  of  being  sold,  negotiated, 
transferred,  or  pledged:  24  &  25 
Vict.  c.  96,  s.  75,  R.  v.  Tatlock,  2 
q.  B.  D.  157. 

^^  'llie  rule  requiring  strict  con- 
struction of  penal  statutes,  is  said 
not  to  be  in  force  in  Kentucky: 
Com'th  V.  Davis.  12  Busk  (Ky.) 
240;  and,  in  California,  to  be 
abolished  by  the  Penal  Code:  People 
V.  Soto.  49  Cal.  09. 

{a)  Per  Pollock,  C.  B.,  in  Nichol- 
son V.  Fields,  32  L.  J.  Ex.  235,  7 
H.  &  K  817. 

{!>)  Per  Lord  Abin^er  in  Hender- 
son V.   Sherborne,  2^M.  &  W.  239. 

(o)  Per  Story,  J.,  in  the  Industry. 
1  Gall.  117. 


{(l)  See  Hull  Dock  Co.  v.  Browne, 
3  B.  &  Ad.  59;  per  Pollock  in 
Nicholson  V.  Fields,  ubi  sup.;  and 
per  Bramwell,  B.,  in  Foley  v. 
Fletcher,  28  L.  J.  Ex.  106,  3  11.  & 
N.  769;  Puft".  L.  N.  b.  5,  c.  12,  s.  5. 
Barb.  u.  4;  Lewis  v.  Carr,  1  Ex.  D. 
484. 

{€)  4  Inst.  330,  The  Sussex  Peer- 
age, 11  CI.  &  F.  143;  2  Peters, 
662. 

(/)  Fennell  v.  Ridler,  5  B.  &  C. 
409;  The  Industry,  ubi  sup.  See 
ex.  gr.  V.  C;iiarre'lie,  13  Q.  B.  447; 
Wviiuev.  Middleton,  1  Wils.  126; 
Archer  v.  James,  2  B.  &  S.  61,  31 
L.  J.  153;  Smith  v.  Walton.  3  C. 
P.  D.  109,  47  L.  J.  ]\I.  C.  45;  ]\Iav 
V.  G.  W.  R.  Co.,  L.  R.  7  Q.  H  :;-4. 
per  Cockburn.  C.  J. 


472  STRICT   CONSTliUCTION'.  [§  340 

property,  are  similarly  subject  to  a  strict  construction.      It 
is  presumed  that  the  Legislature  does  not  desire  to  confiscate 
the  property,  or  to  encroach  upon  the  rights  of  persons  ;  and 
it  is  therefore  expected  that  if  such   be   its  intention,  it  will 
manifest  it  plainly,  if  not  in  express  words,  at  least  by  clear 
implication,  and  beyond  reasonable  doubt  (a).     The  Act  21 
Edw.    1,  de   malefactoribus    in    parcis,   wliich  authorized    a 
parker  to  kill  trespassers  whom  he   found  in  his  park,   and 
who  refused  to  yield  to  him,  was  construed   as   strictly  lim- 
ited to  a  legal  park,  that  is,  one  established  by  prescription 
or  Koyal  Charter,   and  not    merely  one  by  reputation  (Jj). 
[So,  an  act  v.-hich   forbade  and   punished  discrimination  on 
account  of  color  or  race  in  any  public  place  of  amusement, 
was  construed  to  refer  only  to  licensed  places  of  amusement, 
piirtly,  at  least,  upon  the  ground  that  it  could  not  be  sup- 
posed, in    the    absence    of   any  express    provision,  that    the 
Legislature  meant  to  limit  the  manner  in   which  a  person 
should  use,  or  permit  others  to  use,  his  own  premises,  unless 
he  carried  on  a  business  or  occupation  therein  which  required 
a  license  from  the  Government,  in  order  to  be  lawful.'"]      A 
local  harbor  Act,  which  imposed  a  penalty  on  "any  person," 
who  placed  articles  "  on  any  (piay,  wharf,  or  landing  place, 
within    ten    feet    of    the  quay,   head,   or   on    any  space    of 
ground    immediately  adjoining   the  said  haven,  within  ten 
feet   from    high -water   mark,"  so  as  to  obstruct  the  free 
passage    over   it,  was    held    to   apply  only  to   ground    over 
which  there  was  already  a  public  right  of  way,  but  not  to 
private  property  not  subject  to  any  such  right,  and   in   the 
occupation  of  the  person  who  placed  the  obstruction  on  it 
(c).     Notwithstanding  the  comprehensive  nature  of  the  gen- 

(a)Sec  per  Bramwell,  L.  J.,  in  tioii  would  justify  the  intcMpretatioa 

Wells  V.  London  &  Tilbury  11.  Co.,  of  a  statute  forbiilding  wau\  is  upon 

5  Ch.  D.  IdO;  per  Mellish.   L.   J..  the  results  of  c-lecUons,  as  lefernng 

in /^;  Lundy  Co.,  L.  U.  G  Ch.  4(i7;  jiriina  facie  only  to   elections   for 

per.Ianies,  L.  J.,  inExp.  Joues,  L.  public     officers    ordered     by    the 

H.  10  Ch.GG.'5;/>f/'<''/r.  in  Randolph  Legislature,    and    not   to   primary 

V  Milman,  L.  li.  4  C.  P.  Ho;  Creen  cleciunis:  see  ante,  §  335.  ^ 

V  K     1  App.  513;  Exp.   iihe'il  4         (c)  Ilarrod  v.  W(  rship.  1  B.  «&  b. 
Ch   D   78!)  381,    30    L.    J.    M.  C.    16.");  diss. 

(/>)  1   Hale.  491;  3  Dver,  32G  b.  Wightman,  J.     See,  also,  ^yells  v. 

Com    Dig   Pari.  11.  20. '  London  A:   Tilbury  It.    Co.,  5  Ch. 

'"  Com'lh    V.  Sylvester,  13  Alien  D.  12G;  Yarmouth  v.  Simmons,  10 

Olass.)  247.     A  sunilar  cousidera-  Ch.  D.  518. 


§  341]  STRICT    UONSTKUCTION.  473 

eral  terms  used,  it  was  not  ti)  be  inferred  that  the  Legishiture 
contemplated  such  an  interference  with  the  rights  of  prop- 
erty as  would  have  resulted  from  construing  the  words  as 
creating  aright  of  way.  Tiie  Partnership  Law  Amendment 
Act  of  1805,  whicli  provides  that  when  a  loan  to  a  trader 
bore  interest  varying  with  the  proHts  of  the  trade,  the 
lender  shall  not,  if  the  trader  Ijccomes  I>ankrupt,  "  recover" 
his  principal  until  the  claims  of  the  other  creditors  are  satis- 
fied, did  not  (lei)rive  tlie  creditor  of  any  rights  acquii'ed  by 
mortgage.  Though  he  couM  not  recover,  he  was  entitled 
to  retain  {(i). 

§  341.  Common  Lavr  Rights  of  Persons  and  Property. — [ihe 
presumption  against  an  intention  to  change  the  existing 
law,"  and  against  an  intention  to  encroach  upon  the  personal 
and  property  rights  of  individuals  would  seem  to  afford  the 
rational  basis  and  limitation  of  the  rule  requiring  a  strict 
construction  of  statutes  which  are  in  derogation  of  the  com- 
mon law,  so  far  as  that  rule  has  any  legitimate  force  or  ap- 
lication."  Whatever  rights  the  individual  member  of  a 
society  recognizing  the  common  law  possesses,  are  secured 
to  him  either  by  virtue  of  express  grant,  or  by  that  more 
nearly  natural  right  whose  principles  are  embodied  in  the 
common  law.  So  far  as  the  former  is  concerned,  the  rule 
applies  that  enactments  should  not  be  construed  so  as  to  in- 
terfere with  rights  previously  granted  by  the  Legislature,  if 
susceptible  of  a  fair  construction  consistent  with  such  rights." 
The  rights  a  man  has  by  common  law  stand  at  least  upon  as 
high  a  plane  of  sanctity,  and  the  same  rule  must  govern  the 
•construction  of  statutes  as  regards  an  intention  to  encroach 
upon  them.  Thus,  concerning  personal  rights,  it  is  well 
settled,  that  a  strict  construction  is  to  be  given  to  any 
statute  excluding  a  citizen  from  giving  evidence  ;"  requiring 
a  "  suitor's  test  or.th  "  from  him,  in  order  to  entitle  him  to 
become  a  plaintiff  in  a  court  of  justice  ;"  disabling,  for  any 

(a)  Exp.  Sbeil,  4  Cb.  D.  789.  ■"*  Pelbam  v.  Messenger,  16  La. 

■"  See  ante,  §§  113  ot  scqq.  An.  99. 

^■^  Comp.  ante.  §§  128,  129,   and  "  Harrison  v.  Lcacb,  4  W.  Ya. 

post,  ^  348.  383  (requiring  certainty  to  a  certain 

"  McAfee  V.  R.  R.  Co.,  36  Miss.  Intent  in  every  particular).     Comp. 

669.  Harrison  v.  bmitb,  Id.   97  (wlieru 


474 


STRICT    CONSTRUCTION. 


[§342- 


cause,  a  person  of  full  aiije  and  sound  mind  to  make  con- 
tracts ;"  proliibitiii^:  certain  county  officers  from  purchasing,, 
on  belialf  of  any  hiit  tlic  county,  any  tax  certificates,  etc., 
lield  l>y  the  county,  and  dechirin^^  void  a  deed  issued  in  vio- 
hition  of  the  act ;"  or  i)rohibiting  attorneys  from  buying  any 
bond,  etc.,  with  tlie  purpose  of  suing  tliereon.'^ 

§  342.  [And  again,  as  concerns  property  rights,  the  same 
rule  of  construction  has  been  applied  to  statutes  regulating" 
or  restraining  trade  or  the  alienation  of  property,*"  or  pre- 
scribing the  manner  in  which  a  man  shall  use  his  own  prop- 
erty, or  build  on  his  own  land  ;"  or  an  act  giving  the  port- 
wardens  the  exclusive  right  to  survey  vessels  unlit  to  go  to 
sea,  and  decide  upon  tlie  repairs  necessary.*^  So,  an  act  for- 
bidding preferences  in  assignments  for  the  benefit  of  creditors 
was  construed  as  avoiding  only  preferences  attempted  to  be 
given  in  the  instrument  of  assignment,  not  )u-eferences  by 
any  mode  outside  of  it,  as  by  judgment,  or  transfer  of 
property,  mortgage,  or  the  like ;'' and  an  act  forbidding 
bequests  to  charities  within  one  month  of  the  testator's 
death,  was  held  not  to  affect  a  fully  executed  and  completed 
gift  of  personalty  nuide  within  one  month  of  the  donor's 


it  was  held  that  the  oath  by  one 
co-plaintiff  was  sutncient  to  quali- 
fy all) ;  Peudlctou  v.  Barton,  Id. 
496  (deciding  that  the  party  insist- 
ing on  the  act  must  tirst  take  the 
oaUi). 

'«  Smith  V.  Spooner,  3  Pick. 
(Mass.)  229. 

"  Coleman  v.  Hart,  37  Wis.  180; 
so  that  .';uch  an  act  ought  not  to  be 
construed  as  prohibiting  such 
officers  from  buying  such  certifi- 
cates from  another  than  the  county, 
and  having  a  deed  issued  tliereon. 

'«  Ramsey  v.  Gould,  57  Barb. 
(N.  Y.)  398.  But  it  is  said  that 
.siatutcs  imposing  disabilities  for 
pui'poses  of  iirotectiou,  e.  g.,  in 
the  case  of  Indians,  are  not  subject 
to  the  rule  of  strict  construction 
wiiere  such  would  defeat  the 
object  of  tlie  Legislature  :  Doe  v. 
Avaline,  8  Ind.  6.  Hence,  one 
will  be  deemed  as  -within  the  pro- 
tection of  such  a  statute  who  is 
recognized  as  an  Indian  by  the 
community,  by  the  Indians  tiicm- 


selves,  by  sta'e  and  federal  author- 
ities, and  stamped  as  such  by  birth, 
education,  and  language,  allhougk 
he  have  but  3-8  Indian  blood:  Ibid. 
The  same  principle  of  liberal  con- 
struction is,  in  that  case,  said  to  be 
applied  to  acts  conditionally,  i)ro- 
hibiling  iiurchases  from  Indians, 
cit.  Jackson  v.  Ingraham,  4  Johns. 
(N.  Y.)  1C3;  Jackson  v.  Waters,  12 
Id.  365;  Goodell  v.  .lacksou,  20  Id. 
693  ;  De  Armas  v.  Major,  5  i\Iill 
(La.)  132;  Baltimore  v.  McKim,  3 
Bland  (INId.)  455. 

"  Mnyor  v.  Davis,  6  Watts  &  S. 
(Pa.)  269. 

s"  Richardson  v.  Enswiler,  14 
La.  An.  658;  Sewall  v.  Jones,  9 
Pick.  (Mass.)  412. 

8'  Morris  v.  Balderston,  3 
Brewst.  (I'a.)  459  ;  Stiel  v.  Sunder- 
land, 6  II.  &  N.  796. 

S'i  Portwardcns  v.  Cartwright,  4 
Sandf.  (N.    Y.)  236. 

8»  York  Co.  Bk  v.  Carter.  38  Pa, 
St.  4^16,  and  see  AViener  v.  Davis, 
18  Id.  331  ;  also  ante,  §§  144,  145. 


§  343]  STRICT   CONSTRUCTION.  475 

death."  Nor  was  an  act  prohibiting  tiie  reservation  of 
gronnd-rcnts,  not  perpetual  in  their  inception,  but  to  become 
so  upon  the  vendee's  failure  to  comply  with  a  covenant  or 
condition  in  the  deed,  deemed*  applicable  to  a  deed  which 
reserved  a  perpetual  ground-rent,  with  an  option  of  pay- 
ment within  a  certain  time  by  the  vendee.'^ 

§  343.  [A  fortiori  must  the  rule  apply  to  statutes  peruiir- 
ing  the  taking  of  the  property  of  individuals  for  pnl)lic- 
purposes  f'  as  by  way  of  condemnation  of  private  land  for 
such  a  purpose,"  e.  g.,  for  the  purpose  of  opening  streets,, 
etc.  f^  of  impressment  of  property,  e.  (/.,  in  the  case  of  pes- 
tilence,*^ or  war,^° — short,  however,  always,  of  defeating  the 
object  of  the  enactment.*'  The  same  principle  brings  within 
the  rule  of  strict  construction  statutes  authorizing  the  sale  of 
land  for  non-payment  of  taxes  ;"  and  acts  working  forfeitures 
and  confiscations  of  the  property  of  individuals;"  so  that, 
whilst  full  effect  is  to  be  given  to  the  expression  of  the 
legislative  will**  they  must  not  be  held  intended  to  defeat  the 
rights  of  third  parties  in  the  property,  adverse  to  tlie 
individual,  but  only  to  operate  upon  the  individual  himself.*' 
More  particularly  is  this  strictness  required  where  an  act 
subjects  one  man's  property  to  seizure  for  the  liability  of 
another.*'  Similarly  within  the  rule  is  an  act  discharging 
securities  from  their  obligation  upon  refusal  of  the  creditor, 
after  notification,  to  sue  the  principal.*'     And]    upon  this 

"  McGlade's  App.,   99  Psi.   St.  »'  X.  Y..  etc.,  R.  R.  Co.  v.  Kip, 

338.  40  N.  Y.  546. 

85  Palairet  V.  Snyder,  106  Pa.  St.  s- Youn<r    v.    :Martin,    3   Ycates 
227  (Pi^.)  312;  Wills  v.  Audi.  8  La.  An. 

86  Sharp  V.  Speier,  4  Hill  (N.  Y.)  19;  Sibley  v.  Sinitli,  2  Midi.  486, 
176.  where    under     this    rule    of    con- 
s'Gilmer  v.  Lime  Point,  19  Cal.  struciiou,    it    was    held    that    the 

47  ;    Curraii   v.   Shattuck,    24    Id.  Auditor    General    cannot    convey 

427.  lands  sold  for  taxes,  in  the  absence 

88Roffignac   Str.,  7  La.  An.  76.  of    a    special    authority   to  do  so 

So    that     an     act     authorizing    a  given  by  the  statute, 

municipality   to  open    and   widen  ^^  U.   S.  v.  Athens  Armory.  35 

streets  according    to   a  procedure  Ga.   344;  Russell  v.   University,  1 

therein   prescribed,  and   then   pre-  Wheat.  432. 

scribing    no     procedure     for    the  »^  U.     S.     v.    Athens    Armory, 

latter  cases,  i.  e.,  widening  streets,  supra. 

remains  inoperative  to  that  extent:  ^^  Russell  v.  University,  supra. 

Chaffer's  App.,  56  Mich.  244.  •"' ^.ib.   Uliiu  v.   Sluul,    10  Ohio 

89  Pinkham  v.  Dorothy,  55  Me.  St.  582. 

135  91  31iller  v.  Childress,  2  Humph. 

9«"  White  v.  Ivey,  34  Ga.  180.  (Tenn.)  320. 


470  STRICT    CONSTKDCTION.  [y  o-i4 

ground,  it  would  seem,  Statutes  of  Limitation  are  to  be  con- 
strued strictly.  There  may  not  necessarily  be  any  moral 
wrong  in  setting  up  the  defence  of  lapse  of  time,  but  it  is  the 
creature  of  positive  law,  and  is  not  to  be  extended  to  cases 
which  are  not  strictly  within  the  enactment,  [and  therefore 
not  to  be  extended  to  cases  not  within  their  words,  though 
possibly  within  their  reason,""  nor  to  be  construed  most  pre- 
judicially to  the  right  they  limit  ;""]  while  provisions  which 
give  exceptions  to  the  operation  of  sucli  enactments  are 
to  be  construed  liberally  (a).  [Although  such  statutes,  being 
founded  on  sound  policy,  so  far  as  they  are  statutes  of 
repose,  are  not  to  be  evaded  by  construction,""  and  con- 
sequently, though  in  terms  applicable  only  to  actions,  a])ply 
to  all  claims  that  may  be  the  subject  of  actions,  however 
presented,  falling  within  their  intended  operation,'"  yet  they 
cannot  be  made  to  apply  to  a  cause  of  action  wot  embraced 
within  their  intention  by  presenting  it  in  a  form  of  action 
to  which,  in  terms  it  is  made  applicable,  the  nature  of  the 
cause  of  action,  not  the  form,  determining  the  applicability 
of  the  statutes."" 

§  344.  Summary  Proceedings.— [To  the  presumption  aguinst 
an  intention  to  alfect  common  law  rights,  both  of  property 
and  persons,  the  rule  requiring  strict  construction  of  statutes 
authorizing  summary  proceedings  seems,  at  least  in  ])art, 
])roperly  referable.'""  To  this  class  of  statutes  belong  those 
authorizing  attachments,'"*  so  as  to  require  strict  compliance 
with  the  act,  in  all  its  details,  concerning  the  bond   to  be 

98  Bedell  V.  Jannoy,  9  111.  198;  i^'- Dellaven  v.  Bartholoniuw,  .J7 
Giirlancl  v.  Scott.  15  La.   An.  148;      Pa.  Si.  126. 

and  see  Delaware,  etc.,  R.  K.  Co.,  '"^  Comp.  ante,  ^§  158,  202. 

V.  Burson,  01  Pa.  St.  369.  '"*  Wilkiev.  Jones,  1  J\Iorr.  (Ta.) 

99  Elder  v.  Bradley,  2  Sneed  971;  Musirrave  v.  Brady.  Id.  456. 
(Tenn  )  247.  In    Steamboat   Ohio  v.   Stunt.   10 

(a)  See  the    Judgment   of   Lord  Olnu  St.  582,  it  was  said  tliat  stat- 

Cranwortu  in  Roddam  v.  Moriey,  utes  ])roviding  for  the  collection  of 

1  DcG.   &  .1.  1,   26  L.  J.  Ch.  488.  ciaims  by   a  summary  proceeding 

[Comp.  S  850,  note.]  against  i)ropcrly  by  its  seizure  or 

""^  Roberts    v.    Pillow,   Ilemp.st.  atlachmeiU    must  be  construed  as 

624;  McCarthy  v.   White.  21  Cal.  simply  providing  a  remedy  for  the 

495-  Phillips  V.  Pope,  10  B.  Mon.  enforcement  of   liabilities,    not    as 

(Ky.)  108;  Dickenson  v.  McCarny,  creaWuj   new   liabilities    upon  the 

-5  (ia.  486.  owner  of  property,  not  ari&ing  at 

'01  Hart's  App.,  82  Conn.  520.  coiunioii  law. 


\ 


§  344]  STRICT   CONSTRUCTION.  47T 


fc) 


given  before  the  attudinieiit  can  issue,""*  and  the  like  ;  sales 
by  a  constable  on  a  landlord's  warrant/"'  or  an  arrest  without 
direct  charge  of  guilt;'"  or  the  entry  of  judgment  against  a 
defendant,  without  trial  by  jnry,  for  want  of  an  affidavit  of 
defence;'""  or  the  entry  of  judgment,  without  any  proceed- 
ings affording  the  defendant  a  hearing,  on  premium  notes 
given  to  an  insurance  company,  in    wdiich  he  is  a  policy- 
holdcr.'""     So,  under  an  act  authorizing  the  court  of  common 
pleas  to  mark  judgments  satislied  on  proof  of  payment,  it 
was  held  that   it    was   necessary,  in    order  to    warrant   the 
exercise  of  this  jurisdiction,  to  show  actual  payn)ent  in  full, 
an  allegation  of  set-off  to  the  full  amount  of  the  judgment 
remaining  unpaid  not  being  sufficient ;"°  and  that  a  mechanics' 
lien  did  not  at  all  fall  under  the  operation  of  its  provisions.'" 
Again,  where  an  act  provided,  that,  in  all  cases  of  leases  or 
verbal  letting  of  property  for  a  term  of  years,  or  from  year 
to  year,  in  which  the  landlord  had  lost  the  lease  or  evidence 
of  the  beginning  and  conclusion  of  the  term,  and  could  not 
produce  proof  of  the  same,  he  might  give  the  tenant  notice, 
in  writing,  to  furnish  him,  within  thirty  days,  with  the  date 
at  which  his  term  of  tenancy  began,  and  upon  refusal  of  the 
tenant  to  do  so,  might,  at  the  expiration  of  thirty  days,  give 
the  tenant  three  months'  notice  to  quit,  and  thereafter  proceed 
summarily  before  a  justice  to  have  him  ejected  ;  it  was  held 
that  the  act  must  be  strictly  construed  and  confined  to  the 
precise  case  contemplated  by  the  act, — that  the  inquisition 
of  the  magistrate  must  exhibit,  and,  of  course,  proof  be  laid 
before  him  of,  every  factt  wdiich  the  act  made  necessary  to 
the  jurisdiction, — that  the  act  api)lied  only  in  cases  of  tenan- 
cies created  by  lease  which  fixed  a  term  and   rent, — that  it 
must  appear  that  there  was  a  tenancy  for  years  or  from  year 
to   year,— and  that  the  first  year  of  the  term,  or  the  term 
itself,  was  ended."'     And  similarly,  it  was  held  that  a  distress 

'"^Bliike  V.   Sbermao,  13  Minn.  "»  Riddle's    App.,   104  Pii.    St. 

420.  1~1- 

'OS  Murphy  v.  Chase,  103  Pa.  St.  "■  State  v.  McCullouiih,  107  Pa. 

260.  St.  39. 

'0'  State  V.  Dale,  3  Wis.  795.  •'-  :McCullen  v.  MoCrcarv.  54  Pa. 

'08  Wall   V.    Dovc^',    60  Pa.    St.  St.    230.     See.  also.  Lojiwood    v. 

213.  Ilunlsvillc,  Jliiior  (Ala.)  23  ;  II:de 

10^  Barker  v.  Beebor,  112  Pa.  St.  v.     Burton.     Dudley     (Ga.)     105. 

121(3.  CoRip.  Lynde  v.   Noble,  20  Johns,. 


47S  STRICT    CONSTKL'CTIOX.  [§  345 

■warrant  which  the  auditor  was  authorized  by  statute  to  issue 
for  the  collection  of  a  balance  found  due  on  the  settlement 
of  a  revenue  collector's  accounts,  l)eing  a  special  and  sum- 
mary jurisdiction,  could  only  be  issued  with  promptness  and 
in  strict  conformity  with  the  statute."^] 

§  345.  Acts  Imposing  Burdens. — Statutes  [whicli  require 
gratuitous  services  of  any  class  of  citizens,"*  or]  which 
impose  pecuniary  burdens,  also,  are  subject  to  the  rule  of 
strict  construction.  It  is  a  well  settled  rule  of  law  that  all 
charges  upon  the  subject  must  be  imposed  by  clear  and 
unam]>ignous  language,  because  in  some  degree  they  operate 
as  penalties  (a).  The  subject  is  not  to  be  taxed  unless  the 
language  of  the  statute  clearly  imposes  the  obligation  (5); 
[for  taxes  are  not  imposed  by  implication.'^'^]  In  a  case  of 
doubt  the  construction  most  beneficial  to  the  subject  is  to 
be  adopted  (<?).  Thus,  it  was  held  that  an  Act  which  im- 
posed a  stamp  on  every  writing  given  on  the  payment  of 
money,  "  whereby  any  sum,  debt,  or  demand  "  was  "acknowl- 
edged to  have  been  paid,  settled,  balanced,  or  otherwise  dis- 
charged," was  held  not  to  extend  to  a  receipt  given  on  the 
occasion  of  a  sum  being  deposited  {d).  If  one  instrument 
be  incoi-porated  by  reference  in  another,  its  words  would 
not  be  counted  as  a  part  of  the  incorporating  deed  for  the 
purpose  of  stamp  duty,  under  an  Act  imposing  a  duty  accord- 
ing to  its  length  on  the  instrument,  "  together  with  every 
schedule,  receipt,  or  other  matter  put  or  endorsed  thereon, 
or  annexed  thereto  "  (e).  Where  an  Act  imposed  a  stamp 
duty  on  newspapers,  and  defined  a  newspaper  as  comprising 
''any  paper  containing  public  news,  intelligence,  or  occur- 

(N.  Y.)  80,  83  ;  Smith  v.  MofTat,  1  Gas  Co.,  11  C.  B.  N.  S.  579;  15  Id. 

Barb.  (N.  Y.)  05.  568. 

"3  Halev  V.  Petty,  42  Ark.  392.  "^  Poor  Dir's  v.  Scliool  Dir's,  42 

""  Wcbi)  V.  Baird,  6  lud.  13.  Pa.  St.  21,  25. 

(a)  Per   Bayloy,  J.,  in  Denn  v.  (c)   Per     Lord      Lyndliur.st     in 

Diamond,  4  B.  &  C.  243  ;  pc7-  Park,  Stockton  R.  Co.  v.  Barrett,  11   CI. 

J.,  in  Doe  V.  Sna.tli,  8  Biutr.  1,52;  &   F.    002;   per  Parke,  B..  in    lie 

Partini^ion  V.  Atty.  Genl.    L.  K.  4  Micklowaitc,  11   Ex.456,  25  L.  J. 

II.    L.    100;     lies    V.    West  Ham  19. 

Union.  8  Q.  B.  D.  69.  {d)  Tomkins  v.  Aslil.y.    6  B.   & 

{h)  Per  Cur.  in  Hull  Dock  Co.  v.  C.  541.     See  also    VVrou'diton   v. 

Browne,  2  B.  &  Ad.  59;  per  Pollock,  Turtle,  11  M.  &  W.  501. 

('.  B.,  in  Nicholson  v.  Fields.  31  (e)  Fislimonijcr's   Co.    v.    Dims 

L.  J.  E.\.  223  ;  Parry  v.  Croyden  dale,  12  C.  B."557  ;  22  L.  J.  C.  P. 

44. 


■§  345]  STRICT    OOXSTKUCTK^N.  479 

reiiccs  .  .  to  be  dispersed  and  innde  public,  and  also  "  any 
paper  containing  any  public  news,  intelligence,  or  occur- 
rences, or  any  remarks  or  observations  tliereon  .  .  . 
published  periodically  or  in  parts  or  numbers,  at  intervals 
not  exceeding  twenty  six  days,"  and  not  exceeding  a  certain 
size  ;  it  was  held  that  a  publication,  the  main  object  of  which 
was  to  give  news,  but  which  was  published  at  intervals  of 
more  than  twenty-six  days,  was  not  liable  to  the  stamp  duty 
as  a  newspaper  {a).  An  Act  which  imposes  a  stamp  duty 
on  "every  charter  party,  or  memorandum,  or  other  writing 
between  the  captain  or  owner  of  a  vessel  and  any  other 
person,  relating  to  the  freight  or  conveyance  of  goods  on 
board,"  does  not  extend  to  a  guarantee  for  the  due  perform- 
ance of  a  charter  party  (J).  And  yet,  where  an  Act,  after 
imposing  a  stamp  on  contracts,  exempted  those  which  were 
made  relative  to  the  sale  of  goods,  a  guarantee  for  the  pay- 
ment of  the  price  on  such  a  sale  was  licld  included  in  tiie 
exemption  (c);  the  same  words  being  susceptible  of  meaning 
different  things  when  used  to  impose  a  tax,  or  to  exonerate 
from  it  {d).  Lord  Ellenborongh  remarked  that  the  cases  to 
which  a  duty  attached  ought  to  be  fairly  marked  out,  and 
that  a  liberal  construction  ought  to  be  given  to  words  of 
exception  confining  the  operation  of  the  duty  (c);  [whilst  the 
taxing  provisions  are  to  be  construed  most  strongly  against 
the  Government,  and  in  favor  of  the  person  subjected  to  the 
imposition,  and  not  to  be  extended  by  implication  beyond 
the  clear  import  of  the  language  used."*  The  exercise  of 
the  taxing  power  by  the  Legislature  being  strictly  construed, 
it  would  follow,  as  a  matter  of  course,  that  a  delegation  of 

{a)   Ally.  Genl.    v.  Bradbury,    7  "Wr.  L.,  ^  195.     And  see  Ciiv  of 

Ex.  97,  21  L.  J.  12.  Titusville's  App.,  108  Pa.  St.  600, 

{b)  5  &  6   Vict.    c.    79;    Rein    v.  where,  under  iui  act  making  taxes 

Lane,  L.  K.  2.  Q.  B.  144.  liens  on  real  estate  and  i^iviiiij  llicm 

(c)  Warrington  V.  Furbor,  8  East,  priority    over  mortgages  thereon. 

242.  and  also  directing  an  addition  of  a 

(rf)  Per  Blackburn,   J.,    L.   R.   2  certain  percentage  to  the  taxes,  for 

Q.  B.  151,  citing  Curry  v.  Edensor,  non-payment  before  a  certain  day, 

3  T.    R.    527,   and   Warrington   v.  it     was    held     that     this     penalty 

Furbor,  ubi  sup.  See,  also.  Armitagc  becomes   part   of   the   tax,  and   is 

V.  Williamson,  ;!  App.  855.           "  entitled  to  the  same  priority  with 

I's  U.  S.  V.  Wigglesworth,  2Story,  it.     See  ante,   §   3;il,    Com'Mi    v. 

S69.     Compare,  however,  Cornwall  Stand.  Oil  Co.,  101  Pa.  St.  119. 
V.  Todd,  38  Conn.  443,  ami  Bish., 


4M)  STKICr  CONSTlill'TIUN.  [§  34:^ 

that  power  to  an  inferior  branch  of  tlie  government,  e.  fj.^  a 
municipality,  must  be  in  clear  and  unequivocal  terms,'"] 

§  340.  At  the  same  time.  Acts  imposing  such  burdens, 
like  penal  Acts,  are  not  to  be  so  construed  as  to  furnish  a 
chance  of  escape  and  a  means  of  evasion  {a).  Indeed,  as  in 
criminal  statutes,  the  widest  meaning  is  given  to  the  lang- 
uage when  needful  to  effectuate  the  intention  of  the  Legisla- 
ture. For  instance,  in  one  of  the  Church  Building  Acts, 
which  enacted  that  the  "  repairs  "  of  district  churches  might 
be  provided  for  by  a  rate  on  the  district,  the  word  "  repairs  " 
was  construed  as  comprising  not  only  reparation  of  the 
structure  but  all  incidental  matters  necessary  for  the  due 
performance  of  service,  such  as  lighting,  cleaning,  stationery, 
and  organist's  salary  {U).  In  America,  revenue  laws  are  not 
regarded  as  penal  laws  in  the  sense  that  requires  them  to  be 
construed  with  strictness  in  favor  of  the  defendant.  They 
are  regarded  rather  in  their  remedial  character  ;  as  intended 
to  })revent  fraud,  suppress  public  wrong  and  ])romote  the 
public  good  ;  and  are  so  consti'ued  as  most  effectually  to  ac- 
complish those  objects  (c) ;  [and  this,  though  they  impose 
penalties  and  forfeitures  for  their  violation  and  frauds  com- 
mitted against  them.'"  Indeed,  it  has  been  held,  that  such 
statutes  arc  to  be  liberally  construed,  so  as  to  bring  under 
their  operation  as  well  that  which  is  within  their  meaning 
as  that  which  is  within  their  letter.'"  But,  on  the  other 
hand,  it  is  said  that  revenue  and  duty  acts  are  to  be  classed 
neither  as  remedial  nor  as  penal,  but  are  to  be  construed  ac- 
cording to  their  true  meaning  and  import  ;'*"  that  they  are 
not  to  be  extended  beyond    the  clear  import  of  the  words 

"'  Sec  post,  ^^  352  ct.  seq.  of  Cnul,  6  Biss.  ;579;  U.  S.  v.  Olnty, 

(a)  U.  y.  V.  Thirtv-six  barrels  of  1  Abb.    U.    S.    275;  Twenty-eight 

wine,  7  Blatchf.  459.  Cases,  2  Ben.  63;  U.  S.  v.  Cases 

%  R.   V.    Consistory  Court,  2  B.  of   Ciotbs,    Crsibbe   356;  U.    S.    v. 

&  S.  339,  31   L.  J.  Q.  B.  106.     Sec  Alliens  Armoiy,  35  Ca.  3U.J 

R.   V.  Warwiek,  8  Q.   B.   920,  sup.  i'»  See   cases   m    preceding   note 

^  103.  iuid  infni. 

(c)   CMquol's       Champagne,      3  "'■'  U.    S.    v.    llodson,    10    Wall 

Wallace,  145.     [See,  to  sarnie  elfcct:  395. 

Taylor  v.  U.  S.,  3  How.  197;  U.  S.  '-"  Daw   v.    :Morgan.    56   Barb. 

V.   Barrels  of  Spiiits,  2  Abb.  U.  S.  (N.  Y.)   218.     But  see    Crosby   v. 

305;  U.  S.  V.  Willelts.  5  Ben.  219;  Brown,  60  Id.   548,  where  a  strict 

U.  S.  V.  Barrels  of  High  Wines,  7  construction  was  applied. 

BhiLchf.  459;  U.  S.  v.  Three  Tons 


^  '>i1\  STRICT  CONSTliUCTroX.  481 

used,  nor  their  scope  enlarged  by  leijjul  fiction  to  include 
matters  not  within  the  same  ;'^'  that,  in  cases  of  snbstantial 
arnbignity  or  doubtful  classification,  the  construction  should 
favor  the  importer,  duties  not  being  imposed  by  vague  of 
doubtful  interpretation.'"  And  it  has  been  decided  that  a 
law  prohibiting  liquor  selling  without  license,  and  imposing 
a  penalty  upon  its  violation,  should  not  be  treated  as  a  mere- 
revenue  law,  but  as  a  law  fur  the  prevention  of  offences."^ 
The  proper  rule  probably  is,  as  pointed  out  by  an  eminent 
writer,'"  that,  in  the  accomplishment  of  their  primai-y  object, 
the  mere  collection  of  duties,  proportionate  contributions  to 
the  public  burden,  these  enactments  are  not  to  be  construed 
with  the  rigid  strictness  applicable  to  penal  laws  ;'"but  that, 
80  far  as  they  create  crimes,  they  require  the  strict  construc- 
tion of  sr.cli  laws,  and  as  to  forfeitures  and  penalties  recov- 
erable in  civil  actions,  a  stringency  equal  to  that  applied  to 
laws  giving  punitive  damages.  But  it  is  intimated,  that 
the  tendency  of  later  cases  is  to  construe  revenue  laws,  even 
as  to  such  provisions,  "  liberally,  not  in  the  extreme  sense, 
yet  not  strictly  but  in  a  sort  of  equipoise  between  the  two 
interpretations.'"^"] 

§  347.  Acts  Allowing  Costs.— It  is  said  that  all  statutes 
which  give  costs  are  to  be  construed  strictly,  on  the  ground 
that  costs  are  a  kind  of  penalty  (a)  [and  mere  creatures  of 
Btatutes,  unknown  to  the  common  law.'"]  There  is  little 
authority  in  support  of  the  proposition.  On  the  other 
hand,  the  power  of  ordering  the  payment  of  costs  has  been 
sometimes  construed  on  the  principle  of  beneficial  and  liberal 
construction  ;  as  where,  for  instance,  they  have  been  imposed 

'='  U.   S.  V.  Watts,  1  Bond,  580.  125. 

12^  Powers  V.  Barney,  5  Blutchf.  's*  Ibid. 

203-  (a)  Com.  v.  Bowles.  1  Salk.  205  .- 

'-3  Campbell  v.    State,   40   Ala.  [Dent  v.  State,  42  Ala.  514  ]     See 

116;  Lilleiistine  v.  Stale,  Id.  498;  per  Mellor,  J.,  ia   Cobb  v    Mid- 

and    consequently   not    within    a  Wales  R.   Co.,  L.  R.  1  Q.  B.  ^51. 

general   repeal    of   revenue   laws  :  [In  Powers   v.   Wrisrlit,   62   Jliss' 

Ibid.     See,  also,  Mulvey  v.  State,  35.  it  is  said  that  acts  ^-ivinii  the 

43   Id.    310.      And   an    inspection  jury    the   riij,ht    to  liucf  danui"-es 

law   was  declared  to  be  penal    in  actual    or   vuidictivc   against  "the 

Com'th  V.  Giltiuau,  04  Pa.  St.  100.  plaintilT  are  penal  as  to  him  1 

•■-'•' Bi^h.,  Wr.  L..  t^  195.  >"  Bish..    Wr.    L.,   ^   l95:i     rit 

'"  Cit.  U.  S.  V.  Buzzo,  18  Wall,  State  v.  Kiune,  41  X.  H'  238. '  Sees 

JJ1  Addenda. 


482 


STKICT  CONiSTRUCTION. 


[§348 


on  persons  who  were  strans^crs  to  an  action  of  ejectment,  hnt 
at  whose  instance  it  was  brought  or  defeTided  (a). 

§  348.  Acts  Regulating  Form  and  Execution  of  Contracts.— 
Enactments,  also,  wliich  impose  forms  and  solemnities  on 
contracts  on  pain  of  invalidity,  are  construed  sti-ictlv,  so  as  to 
be  as  little  restrictive  as  possil)le  of  the  natural  liberty  of 
-contractins^.  It  wa»^  in  allusion  to  the  Statute  of  Frauds  that 
Lord  Nottinfrham  said  that  all  Acts  which  restrain  the 
•connnon  law,  that  is,  ap})areiitly,  whicli  impose  restrictions 
■urdviiown  to  the  common  law,  oui^lit  themselves  to  be 
restrained  in  exposition  (//).  [The  statutes  of  frauds,  which 
in  order  to  the  validity  and  suableness  of  specified  contracts, 
lequired  certain  memoranda,  in  writing,  signed  or  subscribed 
by  the  parties,  or  by  the  pai-ty  to  be  charged,  have  given 
rise  to  many  decisions  apparently  in  this  spirit."'*]  It  has 
been  said  that  the  cases  iiave  gone  very  far  in  putting  the 
corresi)ondence  of  parties  together,  to  constitute  a  memoran- 
dum to  satisfy  the  statute  {a).  Indeed,  as  it  becomes 
necessary,  in  such  a  case,  to  inquire  what  the  contract  really 
was,  in  order  to  determine  whether  the  informal  papers 
constitute  a  written  note  of  it,  it  may  be  said  that  the  very 
evil  is  let  in  against  which  the  statute  aimed  {d).  A  letter 
from  the  ])ui'chaser  addressed  to  a  tliii'd  person,  stating  the 
terms  of  the  contract  (e),  and  one  from  the  purchaser  to  the 
seller,  which  after  setting  forth  its  terms  repudiated  the 
contract,  have  been  held  sufficient  notes  or  memoranda  of 
the  i)arg:iiu  to  satisfy   the  statute  (_/').     So,  although  it    is 


(a)  llutclunson  v.  Greenwood,  4 
E.  &  B.  324  :  Mobbs  v.  Vanden- 
brandp,  4  B.  A  S.  904  ;  33  L.  J.  Q. 
\>.  177  ;  conip.  Evuns  v.  Kees,  3  Q. 
B.  334  ;  Anstcv  v.  Edwards,  15  C. 
B.  212  ;  Ilayward  v.  Gifford,  4  M. 
A;  AV.  194.  See,  also,  li.  v.  Pcm- 
brid-io.  3Q.  B.  901,  sup.  §29. 

(b)  Ash  V.  Abdy,  3   Swaiist.  6()4. 
'•"See  3  Pars.  Coutr..  Ch.  v.  ])[). 

*,}-67. 

(c)  Pa-FoWock,  C.  B.,  in  McLean 
V.  JSIicoll,  7  Jur.  N.  S.  999.  See, 
£.  g.,  Shortrede  v.  CMicek,  1  A.  & 
E."  57  ;  Boydell  V.  Dnininiond,  11 
East,  142  ;  Dobcll  v.  Ilulcbinson, 
3  A.    &  E.    355  ;   Watts  v.  Ains- 


worlb,  1  IT.  A:  C.  83,  31  L.  J.  E.\. 
448  ;  Aloriis  v.  Wilson,  5  Jur.  N. 
S.  168  ;  Crane  v.  Powell,  L.  \\  4 
C.  P.  123  ;  Bonnewell  v.  Jenkins, 
8  Ch.  D.  70  ;  Commins  v.  Scott, 
L.  R.  20  Eq.  11  ;  Kroubeim  v. 
Johnson,  7  Cb.  D.  GO,  47  L.  J. 
132  ;  Beek worth  v.  Talbot,  95 
U.  S.  2S9.  Sec  Hidi^way  v.  War- 
ton,  cited  in  Jonov.  Victoria  Dock 
Co.,  2Q.  B.  I).  314. 

((0  A''-  Cliannell,  B,,  Ibid.  See 
ex.  ur.  Bisbton  v.  Wbatniore.  8 
Ch.  b.  4G7,  47  L.  J.  G29. 

(0  Gib.'^on  V.  Eollaud,  L.  R.  I  C. 
P.  1.     Sugd.  V.  &  P.  113,  13th  cd. 

(/)  Bailevv.  Swectiuu,  9  C.  B. 


-§  348]  STRICT  CONSTRUCTION.  483 

necesear}'  that  the  parties  to  the  contract  should  be  sufficiently 
described  to  admit  of  their  identification  {((),  it  is  not 
necessary  that  they  should  be  described  by  name.  It  has 
been  held,  for  instance,  that  a  contract  of  sale  signed  l)y  the 
auctioneer,  as  "  the  agent  of  the  proprietor,"  or  of  *'  the 
trustee  for  the  sale"  of  the  j^roperty  sold,  sufliciently 
ilescribed  the  seller  (h) ;  though  a  contract  similarly  "  signed 
by  the  agent  of  the  vendor  "  would  not  suffice  (c)  ;  for  a 
mere  assertion  that  the  person  who  sells  is  the  seller,  is 
obviously  not  a  description  of  the  seller,  nor  tends  to  his 
identification. 

Again,  as  regards  the  signing  or  subscribing  an  instrument 
as  party  or  witness,  the  enactments  which  require  these 
formalities  have  been  construed  witli  similar  indulgence. 
The  testator  who  wrote  his  will  with  his  own  hand,  and 
began  by  declaring  that  it  was  his  will,  setting  forth  his 
name,  was  deemed  to  have  thereby  sufliciently  "  signed  "  his 
will  (d)  ;  and  an  attesting  witness  who  wrote  his  name  on  the 
will,  elsewhere  than  at  the  end  of  it,  was  deemed  to  have 
sufliciently  "  subscribed  "  it,  within  the  Statute  of  Frauds  {e). 
[So,  under  an  act  requiring  wills  to  be  signed  at  the  end 
thereof,  it  was  held  that  this  meant  at  the  end  of  the 
obviously  inherent  sense,  though  it  might  not  be  at  the  end 
in  point  of  space.'"'  Hence,  where  a  will  was  written  on  the 
first  and  thii-d  pages  of  a  sheet  of  paper,  and  signed  at  the 
end  of  the  third  page,  the  body  of  the  will  containing  an 
erasure,  explained  by  a  reference,  in  the  words  "  See  next 
page,"  to  something  more  on  the  fourth  page,  it  was  held 
that  this  was  to  be  read  as  part  of  tlie  will.""]     An  agreement. 

^;.  S.  843,  30  L.  J.  150  ;  Wilkinson  (r)  Potter  v.  Duffiold,   L.   R.  18 

V.  Evans.  L    R.  1  C.  P.  407,  dubit.  Eq.  4;  Thomas  v.  Brovvu,  1  Q.  B. 

('ockl)iirn,  C.  J.,  in  Smiih  v.  Ilud-  I).  714. 

son,  84  L.  J.  Q.  B.  149,  6  B.  &  S."  ((?)  29  Car.  2,  c.  3,  s.  5  ;   Lemane 

4:51  ;  Buxton  v.  Rust,  L.  R.  7  E.\.  v.  Stanley,  3  Lev.  1. 

1.  279.  (^0  Roberts  v.    Phillips.  4  E.  & 

(a)    Charlewood   v.    Bedfoid.    1  B.  450;  24  L.  J.  171.     [And  see,  on 

Atk.  495  ;   Chainjiion  v.  Plummer,  tliis  subject,  1  Jarman,  "Wills,  (5th 

1  N.  R.  252  ;  Williams  v.  Lake,  2  Am.   Ed.)  Ch.  vi.  ;  2  Id.,  pp.  7G3 

E.  &  E.  349,  29  L.  J.  Q.  B.  1.  et  seqq] 

{b)   Sale   V.    Lambert.  L.    R.   18  '■"■' IJaker's  App.,  107  Pa.  St.  381. 

Eq.  1  :  Calling  v.  Kiusj,  5  Ch.  D.  '■■Mbid.     But  under  a  statutory 

(560;   Rossilcr   v.    Miller,    3   App.  requirement   that  a   memorandum 

1124,  48  L.  J.  Ch.  10.  of  sale   shall    be  "subscribed,"  it 


484  STKICT  CONSTRUCTION.  [§  34:^ 

too,  has  been  held  to  be  sufficiently  signed  by  a  corporate 
body,  within  the  meaning  of  the  Statute  of  Frauds,  where  a 
resolution  ordering  its  engrossment  and  execution  was 
passed  by  the  body  and  signed  by  the  chairman  {a).  [And 
where  an  act  directed  that  "  all  contracts  on  account  of  the 
state  prison  shall  be  made  with  the  warden,  and  when 
approved  by  the  inspectors,  shall  be  binding  in  law,'^  it  was 
held  that  a  conti-act  need  not  be  in  writing ;  and  that 
the  approval  of  the  inspectors  might  be  implied  from  a(;ts,. 
and  need  not  be  given  by  an  express  vote,  nor  appear  on  the 
records."'  The  broad  indulgence  with  which  such  statutes 
are  construed  in  favor  of  the  validity  of  instruments  coming 
under  their  operation,  is  but  the  correlative,  and  implies  a 
corresponding  degree  of  strictness  in  the  construction  of 
their  restraining  provisions.  Thus,  where  an  act  prescribed 
that  the  will  of  a  married  woman  should  be  executed  in  the 
presence  of  two  disinterested  and  credible  witnesses,  it  was 
held  that  the  witnesses  need  not  be  subscribing  witnesses."'] 

§  'did.  Acts  Creating  Monopolies,  etc. — Acts  which  establish 
monopolies  (1),  or  confer  exceptional  exemptions  and 
privileges,  correlatively  trenching  on  general  rights,  are- 
subject  to  the  same  principle  of  strict  construction  (c). 

[As  to  statutes  creating  monopolies,  this  is  especiallj^  so, 
where  they  are  in  restraint  of  trade  and  against  public  con- 
venience and  improvement."'  The  rule  applies  to  the  grant  of 
an  exclusive  right  to  build,  and  maintain,  etc.,  toll  bridges  ;"* 
so  that  the  provision  that  no  "  bridge  "  should  be  built  within 
a  mile  of  the  toll-bridge  provided  by  the  charter,  was  held 
not  to  forl)id  the  building  of  a  railway  viaduct;'"  and  the 

was  held  iK^t  enough  that  the  sig-  (b)  Per  Lord  Campbell   in  Uciid 

nature  of  tlie  party  to  be  charged  v.  Ingliam,  ,'J  E.  &  li.  899,  23  L.  J. 

appeared  in  the  inidst  of   the  list  150  ;   Direct   U.    S.    Cal)le   Co.   v. 

of    articles,    the    subjects  of    the  Anglo-Am.     Co.,    2     App.      394. 

sale  :   McGivern  v.   FJemming,  12  [Wesifall  v.  Mapes,  3  Grant  (Pa.) 

Dalv  (N.  Y.)  289.      And  see  Coon  198.] 

V.  liigden,  4  Col.  27G.  (c)  See  ex.  gr.  U.  v.  Hall  Dock 

(«)  Jones  V.  Victoria  Dock  Co.,  Co.,  3  B.  &  C.  516.  Brunskill  v. 

2  Q.  B.  D.  314.     [See  Field,  Priv.  Watson.  L.  R.  3  Q.  B.  418. 

Corp.,  §  247.]  '33  Westfall  v.  Mapes,  supra. 

'3'   Aus!in   V.    Foster,    9    Pick.  ^"*  Hce  Bridge  Co.  v.  R.  K.  Co.. 

(Mass.)  341.  13  N.    J.    Eq'.    81  ;    1  Wall.   110; 

'«    Combs'    App..    105   Pu.    St.  Lake  v.  R.  H.  Co.,  7  Nev.  294. 

155.     See  ante,  §  20,  note  93.  '•"  Cases  in  preceding  note.    See- 


§  350]  STRICT  CONSTEUCTION.  485 

.grant  of  aright  to  build  a  macadamized  road  and  charge  toll 
thereon,  so  that  snch  a  grant  would  not  confer  the  latter 
power  until  all  the  terms  of  the  statute  were  complied  with 
and  the  road  completed.""  And  where  an  act  passed  in  18G7 
authorized  a  borough  to  construct  public  water  works,  the 
building  of  them  to  be  submitted  and  postponed  to  a  popular 
vote,  and  an  act  passed  in  1874,  which  was  acccipted  by  a 
private  water  company  chartered  in  1860  to  supply  the 
borough  with  water,  provided,  that,  within  the  district  or 
locality  covered  by  its  charter,  the  right  of  such  a  company 
incorporated  under,  or  accepting,  that  act,  to  enjo}'  its  fran- 
chises and  privileges  should  be  ''  an  exclusive  one,"  the  right 
of  the  water  company  was  held  to  be  exclusive  only  as 
against  other  private  water  companies,  not  as  against  the 
borough.*" 

§  850.  Acts  Creating  Exceptions  from  Recognized  Liabilities, 
.etc.— [The  same  rule  applies  to  the  construction  of  statutes 
creating  exceptions  or  exemptions  from  recognized  liabilities.] 
The  enactment,  for  instance,  that  ship-owners  should  not  be 
liable  for  damage  done  by  their  ships  without  their  default, 
beyond  "  the  value  of  the  ship''  and  its  ''  freight,"  was  held 
to  include,  in  this  value,  ever3'thing  belonging  to  her  owners 
that  was  on  board  for  the  performance  of  her  adventure,  such 
as  the  fishing  stores  of  a  vessel  employed  in  the  Greenland 
fisher}' ;  although  they  would  not  have  been  covered  by  a 
policy  on  "  the  ship  and  freight,"  and  the  phrase,  "  the  value 
of  the  ship  and  her  appurtenances"  had  been  used  ten  timoQ 
in  other  parts  of  the  Act  (a).  This  decision  rested  on  the 
ground  that  the  enactment  abridged  the  common  law  right 
of  the  injured  person  ;  and  that  the  shipowner  was  not 
entitled  to  more  than  the  meaning  of  the  words  strictly 
imported.  So,  the  enactments  which  exonerate  a  ship-owner 
from  liability  for  damage  caused  by  his  ship  through  the 
default  of  a  compulsorily  employed  pilot,  are  restricted  to 

similar  coustrucfion  of  the  words  BingUnrapton      Bridge      Case,     3 

"bridge,"      "bridge      structure,"  WaTl.  51. 

ante,  ^  79.                ""  '=^  Lehigh  Water  Co.'s  App.,  102 

"36   State  V.  Cuny,  1  Nev.  251.  Pa.  St.  515. 

See,    also,     upon      this      subject,  (a)  Gale  v.  Laurie,  5  B.   &  C. 

Sedgw.,  pp.  2'Jl-292.    But  compare  15(J  ;  Smith   v.    Kirhy,  1  Q.  B.   D. 

131.     "Freight:"  sci:  Adch/ida. 


486 


STRICT  CONSTiaCTlON. 


L§  ^^<>' 


cases  where  the  pilot  was  the  sole  cause  ol"  the  dauia^c, 
without  any  default  on  the  part  of  the  master  or  ci-ew  (a). 
[As  belonging  to  this  class  of  statutes,  falling  under  the  rule 
of  strict  construction  have  been  recognized  enactments 
exonerating  railroad  companies  from  liability  foi-  injury  by 
accident  to  passengers  riding  on  the  ])latforn)S  of  cars;''' 
exempting  portions  of  debtors'  property  from  liability  for 
their  debts  ;"''  staying  civil  process  against  persons  enlisting 
in  the  army ;'"  or  exempting  partners  from  individual 
liability  for  partnership  debts:'"  so  that  a  person  claiming 
such  exemption,  e.  g.,  under  a  limited  partnership  act,  must 
show  that  he  has  strictly  complied  with  its  requirements,  and 
that  members  of  a  general  partnership  already  engaged  in 
business  cannot,  by  recording  a  statement  in  due  form,  under 
the  Pennsylvania  limited  piirtnership  act  of  2  June,  1874, 
showing  that  each  partner  has  subscribed  and  paiil  in  cash  a 
sum  certain,  protect  themselves  against  individual  liability 
for  the  debts  of  the  association  subsequently  contracted, 
when,  as  a  matter  of  fact,  no  cash  has  been  actually  subscribed 
or  paid,  but  the  assets  of  the  firm  as  originally  constituted 
have  simply  been  allowed  to  remain  in  the  business.'*'     To 


(a)  The  Protector,  1  W.  Rob.  45; 
The  Diana,  4  Moo.  P.  C.  11  ;  The 
lona,  L.  11.  1  P.  C.  426. 

138  Willis  V.  R.  K.  Co.,  ;J2  Barb. 
(N.  Y.)  398. 

"39  Rue  V.  Alter,  5  Denio  (X.  Y.) 
119  ;  ."^o  as  not  to  exempt,  with  a 
"  team,"  its  necessary  fodder  : 
Ibid.,  and  to  restrict  a  homestead 
exemption  in  such  manner  as  to 
exclude  from  exemption  the  wiiole 
of  a  block,  the  character  and  con- 
struction of  which  was  for  busi- 
ness purposes,  although  a  part  was 
used  as  a  dwelling  :  Re  Lammer,  7 
Biss.  2G0.  Compare,  however, 
Charless  v.  Lamberson,  1  Iowa, 
435,  and  ante,  t^  103. 

i'»  Breitenbach  v.  Bush,  44  Pa. 
St.  813  ;  so  as  to  give  but  one  .stay, 
to  be  computed  from  the  time  of 
original  muster,  and  not  to  be 
renewed  by  re-enlistment  :  Ibid. 
So,  disabilities  saving  rights  of 
action  cannot  be  tacked  to  each 
other,  e.  f/.,  infancy  and  coverture: 
8ee   Carlisle  v.    Stitler,    1  Pen.  & 


W.  (Pa.)6;  Thompson  v.  Smith, 
7  Serg.  &  K.  (Pa.)  209  ;  Rankin  v. 
Tenbrook,  G  Watts  (Pa.)  388; 
Marple  v.  Myers,  12  Pa.  St.  122  ; 
Rider  v.  Maul,  40  Id.  376. 

'■»'  Andrews  v.  SchotI,  10  Pa. 
St.  47 ;  Vandike  v.  Rosskam,  67 
Id.  330  ;  xMaloney  v.  Bruce,  94  Id. 
249  ;  Eliot  v.  Ilimrod,  108  Id.  569; 
Pierce  v.  Bryant,  5  Alleu  (Mass.> 
91. 

'^^  Eliot  v.  Ilimrod,  supra,  and 
other  cases  in  preceding  note. 
Converse)}',  statutes  subjecting 
stockholders  in  corporations  to 
individual  liability  for  debts  of  the 
corporation,  and  giving  remedies 
for  the  enforcemeiil  of  such  liabil- 
ity, are  also  to  be  strictly  inter- 
preted and  jiursued  :  Moyer  v.  Pa. 
folate  Co.,  71  Pa.  St.  293  ;  Lane's 
App.,  105  Id.  49  ;  O'Reilly  v. 
Bard,  Id.  569.  And  see,  to  same 
effect,  Brcitung  v.  Lindauer,  37 
Mich.  287.  where,  in  construing  an 
act  requiring  annual  reports  of  the 
condition  of  certain   corporations,. 


§350] 


STRICT  CONSTKUCTION. 


487 


this  category  belongs  all  of  that  class  legislation  ;'"  so  abundant 
of  late,  giving  liens,  preferences,  and  the  like  to  certain  kinds 
of  claims, — as,  e.  g.,  an  act  giving  certain  pruferences  in  ])ay- 
ineut  out  of  county  revenues,'"  or  the  effects  of  a  failing 
debtor  ;'"  requiring  bail  absolute  on  :in  appeal  from  the  judg- 
ment of  a  justice  in  favor  of  plaintiff  for  "wages  uf  manual 
labor."'""  Hence  an  act  preferring  claims  for  wages  would 
not  benefit  a  person  who  had  paid  and  held  store-orders 
issued  on  account  of  wages,  the  transfer  of  such  not  constitut- 
insr  an  assiirnment  of  a  lalxjr  claim."'  Nor  would  a  lien 
created  by  statute  upon  a  tenant's  crops,  be  construed,  in  the 
absence  of  a  clear  expression  or  fair  implication  to  that  effect 
to  have  a  superiority  not  attached  by  the  connnon  law  to 
similar  charges,  e.  j/.,  so  as  to  bind  it  in  the  hands  of  bona 
fide  purchasers."*  And  a  statute,  local  in  its  operation  and 
prejudicial  to  owners  of  land  will  be  strictly  construed  ;"'  as, 
e.  g.,  a  special  statute  giving  mechanics  liens  upon  leasehold 
interests  in  certain  cases  and  localities. '■"] 


jiud  milking  directors  who  "iuten- 
tioually  neglect"  to  tile  such  reports 
liable  for  all  debts  of  the  corpora- 
tion contracted  during  the  period  of 
such  neglect,  it  was  held  (1)  that 
the  statute  was  not  to  l)e  iuterpieted 
as  though  the  word  "  intentionally" 
were  omitted;  (2)  that  the  directois 
were  not  piimarily  liable!  imder 
it  ;  (8)  that  the  liability  itniiosed  was 
a  penalt\',  and  not  a  contract  obli- 
gation upon  which  creditors  could 
rely,  so  that,  if  not  i)ut  in  judg- 
ment, it  could  not  be  entorced 
after  a  repeal  of  the  clause  impos- 
ing it,  even  if  incurred  before. 
Comp.  anle,  ^  14. 

'^^  See  Womelsdorf  v.  Heifner, 
104  Pa.  St.  1  ;  Oppen:  eimer  v. 
Morrell,  (Pa.)  10  Centr.  llep.  635, 
63G. 

'^^  People  V.  Williams,  8  Cal.  97. 

'•♦■''  (Miapin  v.  Persse,  etc.. 
Works,  oO  Conn.  401  ;  and  see 
Kheeling's  App..  107  Pa.  St.  IGl. 

'•"*  Woiuelsdorf  v.  Heifner,  supra; 
.so  that  a  judgment  based  upon  a 
cause  of  action  shown  by  the 
docket  to  be  "  work  and  labor  Don 
on  farme  "  would  not  require  such 
l)ail  ;  for  the  work  and  labor  may 


have  been  mere  superintendence  : 
Ibid.  See  ante,  t^  99,  as  to  what 
constitutes  a  laborer  xmder  such 
statutes. 

'■"  Kheeling's  App.,  supra. 

'■"*  Scaife  v.  Slovall,  G7  Ala. 
237. 

'«  :Marsh  v.  Nelson,  101  Pa.  St. 
51,  in  this  case  .so  as  to  have  a 
retrospective  operation  only,  and 
not  to  apply  to  future  cases. 

'^'0  Esterly's  App.,  54  Pa.  St.  192. 
But  see  Dame's  App..  (32  Id.  417. 
See,  also,  llartman's  App.,  107  Id. 
327,  where,  under  an  act  giving 
certain  operatives  in  works,  etc.,  a 
preferred  lien  on  the  same  in  the 
event  of  their  "  sale  or  transfer  .  . 
preceding  the  death  or  insolvency  " 
of  the  employer,  it  was  held  that 
any  sale  or  transfer  of  such  works, 
etc.,  during  the  lifetime  or  sol- 
vency of  the  employer  was 
intended,  and  that  the  claiuumt 
need  not  show  his  subsequent 
death  or  insolvency.  See  Bullock 
V.  Horn,  44  Ohio  St.  420,  holding 
a  slat  ate  relating  to  mechanics' 
liens  to  be  remedial  and  constru 
able  liberally  to  cany  out  the  leg)  • 
lative  intent. 


4:88  STKICT    CONSTRUCTFON.  [§  351 

^  351.  Acts  Creating  New  or  Special  Jurisdictions. — The  Same 
principle  of  construction  is  ;ip[)licd  to  enactments  which 
create  new  [or  special]  jurisdictions,  or  delegate  subordinate 
legislative  or  other  powers  (a). 

[It  has  already  been  seen"^'  that  there  is  a  presumption 
5»gainst  an  intention  to  create  new  jurisdictions.  The  conse- 
quence of  this  presumption  is  a  strict  construction  of  statutes 
which  do  create  them.'"  The  same  presumption  and  the 
same  result  hold  good  as  to  statutes  giving  new  remedies ;'" 
e.  g.,  an  act  conferring  a  right  of  distress.*"  But  they  are 
said  not  to  apply  to  statutory  regulations  for  the  exercise  of 
a  pre-existing  common  law  right.'" 

[A  strict  compliance  with  the  requirements  of  a  statute  is 
also  exacted,  where  the  same  confers  a  special  jurisdiction, 
as,  the  right  to  issue  writs  of  attachment  upon  certain  ante- 
cedent conditions,"*  or  to  remove  corporate  officers."']  The 
22  &  23  Vict.  c.  21,  which  empowered  the  Barons  of  the 
Exchequer  to  make  rules  as  to  the  process,  practice,  and 
pleading  of  their  Court  in  rev^enue  cases,  w'as  held  not  to 
authorize  them  to  make  rules  granting  an  api)eal  to  the 
Exchequer  Chamber  and  House  of  Lords  {h).  A  different 
construction  would,  in  effect,  have  given  the  Barons  authority 
to  confer  jurisdiction  on  two  Superior  Courts,  and  to  impose 
on  them  the  duty  of  hearing  an  appeal  against  its  decisions 
id).  A  power  given  to  the  Court,  subject  to  the  restrictions 
of  the  Act,  to  authorize  the  grant  of  leases,  followed  bj 
a  proviso  that  any  person  entitled  to  the  possession  of 
settled  estates  might  apply  to  the  Court  for  the  exercise 
of    the    power,   was    held    not    exercisable    except    on    the 

(«)  See  ex.  gr.  per  James,  L.  T.,  right  of  action  in  an  individual  or 

in  Flower  v.  Lloyd,  6  Ch.  D.  301  :  a  class  of    individuals  :    Neal    v. 

Diss  V.  Aldiitb,  2  Q.  B.  D.  179.  Moultrie.  12  Ga.  104. 

'5'  Ante,  §§  155  et  seq.  '^"^  Sedgw.,  p.  301.  cit.    Buckley 

i'2  East  ijnion  Tp.   v.  Ryan,  86  v.  Lovvry.  2  Mich.  419;   People  v. 

Pa.  St.  459.      See,  also,  Marshall's  ll-ed.  5  Denio  (N.  Y.)  554.     See, 

Lessee  v.  Ford,  1  Yeatcs  (Pa.)  195;  also.  Haley  v.  Petty,  42  Ark.  392, 

Wistar  v.  Kanimcrcr,  2  Id.  100.  ante,  i^  344. 

'=»   East    Union    Tp.    v.    Ityan,  '"   Chollar   Mining   Co.   v.  Wil- 

supra.  son,  (50  Cal.  374. 

'■••»    Rutherford    v.    Maynes,    97  {h)  Atty.-Genl.  v.  Sillem,   10  11. 

Pa.  St.  78.  L.  705.  33  L.  J.  Ex.  92,  209. 

165   Avery   v.   Groton,  3G  ("onn.  (c)  Per    Lord     King.sdovvn,     Id. 

a04.      Nor   to   an   act   creating   u  230,  10  IL  L.  775. 


^  S;")!  I  STRICT  <j(>NS'ii:i:(Ti(>.\.  4S9 

application  ol  such  a  person  {a).  Wlicii  (•onllnis^i(Jnc^s  were 
aiitliorized,  at  tliesinrie  time  that  thev  awiuck-d  cuiiipensatioii, 
to  apportion  the  ])aytneiit  among  tliose  heneiited,  an  appor- 
tionment made  at  a  subsequent  time  was  held  invalid  (i). 
'The  Licensing  xlct,  1872,  enacting  that  where  justices  have 
ordered  a  distress  in  default  of  jDajment  of  a  penalty,  they 
ma}'  order,  in  default  of  its  payment,  imprisonment  for  six 
■months,  was  held  not  to  authorize  imprisonment  where  no 
order  of  distress  had  been  made  in  consequence  of  the  defend- 
ant admitting  his  inability  to  pay  the  line.  It  would,  indeed, 
have  been  idle  to  issue  a  distress  ;  but  the  words  were  express 
and  positive  (c).  So,  where  an  Act  gives  an  appeal  to  the  next 
Quarter  Sessions,  that  Court  cannot,  under  a  general  power 
to  regulate  its  procedure,  reject  it,  unless  the  conviction 
or  order  appealed  against  be  tiled  (d),  or  notices  not  required 
b}'  the  Statute  be  given  (e),  or  the  appeal  itself  be  lodged,  so 
many  days  before  the  Sessions  (/').  It  might  perhaps,  unless 
the  Statute  required  that  the  appeal  should  be  decided  at 
the  same  Sessions  (^),  lawfully  ])ostpone  the  hearing  of  an 
appeal  not  complying  with  those  conditions  within  such 
time  ;  but  to  reject  it  altogether  would  be  to  refuse  the 
appellant  the  privilege  given  by  the  Act,  by  imposing 
conditions  which  the  Legislature  had  not  imposed.  [For  the 
same  reason,  where  an  act  gives  to  a  party  the  right  to  sub- 
mit his  case  to  arbitration,  compulsory  upon  the  opposite 
party,  provided  he  announces  his  determination  to  do  so 
before  the  week  in  which  the  cause  is  set  down  for  trial  in 
•court,  or  more  than  thirty  days  before  the  term,  the  court, 
under  a  general  power  to  prescribe  rules  for  the  regulation 

(a)  Taylor  v.  Taylor,  1  Cb.    D.  Co.,  2  Ex.  D.  450  ;  S.  E.  R.  Co.  v. 

426                             '  H.  Com..  6  Q.  B.  I).  58(j. 

(J)     Mayor      of      ]\Ioutreal      v.  (d)  K.   v.  AVest  Kkliug,  2  Q.  B. 

Stevens,  3  App.  605 ;  47  L.  J.  P.  705. 

C   67  {.()   K-   V.   West  RidiDir,  5  B.  & 

'(c)  35  &  36  Vict.   c.  04,   s.  51  ;  Ad.    667  ;   R.   v.   Noifofk,  5  B.  & 

Exp.   Brown,  3  Q.  B.    D.  545,  47  Ad.  990 ;   R.  v.  Surrey,  6  I).  &  L. 

L.   J.   108;  per  Cockbuni,   C.  J.,  735;  R.  v.  Blues.  5  E.  &  B.  291. 

dul)it.  ]\Iellor.  J.      See  other  illus-  24  L.  J.  M.  C.  138. 

tralioiis,    in    tlie    construction    of  (./)  R-  v.  Puwlett,  L.  R.  8  Q.  B. 

the   powers  given    to  the   railway  491  ;   R.   v.   Staffordshire,  4  A.  & 

commissiduers.      Groat      Western  E.  844. 

R.  Co.  V.  R.  Com..  7  Q.  B.  D.  182;  (s)  1^-  ^'^  Belton,  11  Q.  B.  ;3S8. 
Toomer  v.  London,  Ch,  &  D.  R. 


490  STRICT  CONSTKCCTIOX.  [§  352' 

of  its  practice,  etc.,  cannot  prevent  the  defendant  from  taking 
out  a  rule  for  arbitration  before  the  time  fixed  by  general 
rule  of  court  for  filing  an  afhdavit  of  defence,  or  restrict 
liis  right  to  arbitrate  upon  condition  of  filing  an  affidavit, 
or  strike  off  the  rule  to  arbitrate  upon  his  failure  to  do  so.""* 
And  so  it  was  iield,  that,  the  Legislature  having,  by  statute,, 
fixed  the  standard  of,  and  the  mode  of  keeping,  petroleum, 
etc.,  it  was  incompetent  for  a  board  of  'health,  under  its 
general  statutory  powers,  to  impose  additional  restric- 
tions.'^" 

§  352.  Acts  Delegating  Powers. — [Powers  delegated  to 
subordinate  local  authorities  are  strictly  construed,  and 
any  reasonable  doubts  as  to  the  existence  of  a  particular 
power  resolved  against  the  same  ;""  and  consequent!}',  of  two 
possible  constructions,  that  is  to  be  adojited  which  is  based  on. 
the  theory  that  the  Legislature  intended  to  give  only  sucli 
powers  as  were  necessary  to  carr}'  out  the  objects  of  the 
enactment,  and  not  any  larger  powers  than  were  necessary 
for  that  purpose.'"  Hence,  too,  statutes  delegating  to 
municipal  and  other  inferior  authorities  the  power  of 
imposing  taxation  must  be  in  clear  and  unambiguous  terms, 
and  are  subject  to  the  rule  of  strict  construction  ;'"  as,  e.  g., 
statutes  giving  municipalities  power  to  impose  a  license  tax  on 
vehicles  used  in  their  streets.'*^  or  to  levy  assessments  upon, 
propert}'  owners  for  improvements  to  their  lands,'"  And  so, 
too,  grants  to  such  corporations  of  extraordinary  powers,, 
unknown  to  the  common  law,  as  that  of  donating  corporate 
funds  in  aid  of  a  raili-oad.'"  An  act  conferring  special 
ministerial  authority  upon  officers,  in  the  exercise  of  which 

158  Hickernell  v.  Bank,  63  Pa.  St.  '"  Bennett   v.    Birniiiiirham,  31 

146.  Pa.  St.  15.    But  a  provision  author- 

'^'    Metr.     B'd     of    Health     v.  izingacity  to  license,  at  any  annual 

Sclimades,    10    Abb.    Pr.    N.     S.  charue,     "  ()ninibu.><es    or  vehicles 

(N.  Y.)  205.  in   tLc   nature    thereof,"  was  con- 

'•'°  Paine    v.    Spratley,   5  Kan.  strued  to  aulliorize  .«uch  a  charire 

525.  for  tlie  use  of  street  cars  :  Frank- 

161  "Wandsworth  B'd  of  Works  v.  foit,  etc.,  Ry.  Co.  v.  Philadelphia, 

United    Teleph.   Co.,  L.  B.  13   Q.  58  Pa.  St.  liO. 

B.  D.  904.  '"*    Rutherford  v.    Maynes,    97 

"*^  Mason  v.  Police  Jury,  0  La.  Pa.  St.  78. 

An.  368  ;  St.  Louis  V.  Laughlin,  49  "^^   Indiana,    etc.,    Ry.    Co.    v. 

Mo.    55J>  ;  Moseley  v.  Tift,  4  Fla.  Attica,  56  Ind.  476. 
402  ;  and  cases  infra. 


§  352]  STRICT  CONSTRUCTION.  491 

rights  of  property  may  be  affected  or  imnii('i])al  liability 
incurred,  must,  upon  pain  of  vitiating  the  entire  proceeding, 
be  strictly  pursued  ;""  and  all  rights  and  powers  of  a  juris- 
dictional or  discretionary  kind  must  be  exercised  in  strict 
conformity  with  its  letter  and  spirit."'  A  joint  power 
granted  to  five  commissioners  cannot  be  exercised  by  four  of 
them  ;'"*  nor  a  discretion  vested  in  one  body  or  person,  e.  (j., 
in  the  city  councils,  delegated  to  another,  e.  g.,  the  mayor 
and  aldermen. '"'  And  where  a  board,  such  as  a  board  of 
county  commissioners,  propose  to  do  any  deliberative  act 
which  shall  be  binding  upon  absent  members,  it  must  be 
done  at  a  regular  meeting,  or  a  regular  adjourned  meeting, 
or,  if  at  a  special  meeting,  notice  thereof  must  be  served,  if 
possible  personally,  upon  every  member  entitled  to  be 
present.""  And  this  applies  equally  to  pul)lic  and  private 
corporations."'  Alike  applicable  to  both  is  the  principle 
that]  rules  and  by-laws,  are  construed  like  other  provisions 
encroaching  on  the  ordinary  rights  of  persons.  They  must, 
on  pain  of  invalidity,  be  reasonable,  and  not  in  excess  of  the 
statutory  power  authorizing  them,  or  repugnant  to  that 
statute  or  to  the  general  principles  of  law  («).  [Thus,  an 
ordinance  passed  by  the  councils  of  a  borough  establishing 
fire-limits  in  the  borough  and  prohibiting  the  erection  of 

'^^   Siiuwnee    Co.    v.    Carter,   2  Mercer    Co.,     etc.,    Ins.     Co.     v. 

Kan.  115.  Stranaban,  104  Pa.  St.  246. 

'"  Garrigus  v.  B'd  of  Comm'rs,  (a)  See  Hacking  v.  Lee.  2  E.  & 

39  Ind.  06.  E.    910.    29     L.     J.     206  ;    Exp. 

'«8  Geter    v.    Comm'rs,    1    Bay  Davis,  L.  R.  7  Ch.  526  ;   Bentham 

(S.    C.)    354.       A    commissioner's  v.  IToyle,  3  Q.  B.   D.  289.      See, 

court  cannot  delegate  to  an  arcbi-  also,  Hall  v.  Ni.xon,  L.  R.  10  Q.  B.  . 

tect  the  authority  conferred  upon  153  ;   Young  v.  Edwards,  33  L.  J. 

them  to  contract  for  the  construe-  M.   C.   227  ;   Haltersiey  v.  Burr.  4 

iion    of    a   courthouse,    but   may  H.  &  C.  153  ;  Brown   v.  Holyhead 

tuthorize  him  to  miike  a  contract.  Board,  1  H.  &  C.  601  ;  Fielding  v. 

iiUbjcct  to  their  approval  :    Russell  Rhyl,  3  C.  P.  D.  272  ;  Saunders  v. 

/.  Cage,  66  Tex.  428.  S.  "E.    R.    Co.,    5  Q.    H.    D.    456; 

"9  State  V.  Fiske,  9  R.  I.  94.  Dyson  v.  Lond.  &  N.  W.  R.,  7  Q. 

"0  Pike  Co.  V.  Rowland,  94  Pa.  B.  D.   32  ;   A.sheudcii  v.   Lond.  & 

St.  238.  Br.  R.   Co.,  5  E\.    D.   190  ;  Dear- 

'■^'  Ibid.  See,  as  to  private  cor-  den  v.  Townscud.  L.  R.  1  Q.  B. 
porations,  Roberts  v.  Price.  16  L.  11;  Torquay  v.  Bridle,  47  J.  P. 
J.  C.  P.  109;  Moore  V.  Hammond,  183.  [It  would  be  impos>ible 
OB.  &C.  450.  But  a  power  given  to  pursue  the  general  subject 
to  the  Board  of  Directors  of  an  of  this  section  beyond  the  state- 
Insurance  Company  to  settle  losses  ment  of  a  few  illustrative  princi- 
may  be  delegated  to  a  committee  :  pies.      For  details   see    Dillnn  on 

Municipal  Corporations;  Angell  and 


492  STRICT    CONSTRUCTION.  [§  353 

frame  buildiiiijs  within  the  same,  was  dechired  inoperative, 
as,  under  the  circumstances,  an  unreasonable  exercise  of  tlie 
legisUitive  powers  conceded  to  such  corporations.*"  So,]  a 
local  act  which  authorizctl  a  navi<,^atiou  company  to  make 
by-laws  for  the  orderly  using  of  the  navigation,  and  for  tiie 
ffoverninff  of  the  boatmen  carrying  merchandize  on  it,  was 
held  not  to  authorize  a  by-law  which  closed  the  navigation 
on  Sundays,  and  prohibited  the  use  of  any  boat  on  it,  except 
for  going  to  church  (a).  [So,  where  building  associations 
arc  authorized  to  impose  tines  upon  their  members  for 
delinqaencics,  it  has  been  uniformly  held  that  the  fines 
imposed  must  be  reasonable,  and  that  the  imposition  of  fines 
upon  fines,  or  an  increase  of  fines  for  continued  delinquen- 
cies, upon  the  principle  of  arithmetical  progression,  is  unwar- 
ranted.'" Again]  where  a  charter  which  founded  a  school 
empowered  the  governors  to  remove  the  master  at  their 
discretion,  and  also  authorized  them  to  make  l)y-laws ;  it 
w-as  held  that  a  by-law  ordaining  that  the  master  shoukl  not 
be  removed  unless  sufficient  cause  was  exhibited  in  Avriting 
against  him,  signed  by  the  governors,  and  declared  by  them 
to  be  sufficient,  was  void  ;  for  the  power  to  make  by-laws 
did  not  authorize  the  making  of  one  which  restrained  and 
limited  the  powers  originally  given  to  the  governors  by  the 
founder.  This  was  in  effect  to  alter  the  constitution  of  the 
school  (?>). 

§  353.  [As    to  statutes  generally,   conferring  powers,   it 

Ames,   Field,    JMorawetz,  on   Cor-  394. 

porations,  and  similar  works.     A         (b)   II.  v.   Darliugtou  School,    6 

by-l;iw   requiriiiir  tiie  consent    of  Q.    B.    G83,    questioned    by    Lord 

ail   the  .stockholders  to  a  transfer  Hafhcrly   in   Dean  v.  Bennett,  L. 

of   slock  by  a   member  is  void  as  li.  0  Ch.  489.    See,  also,  11.  v.  Cut- 

agaiiist  piii)lic  policy:   Sleeper  v.  bush,  4  Burr.  2204  ;    R.   v.    Wood, 

Goodwin,  07  Wis.  oTT.]  5  E.  &  B.  49  ;   Chilton   v.    London 

'•- Knecdler  v.   Norristown,  100  and  Crovdon  K.  Co.,  16  M.  «&  W. 

Pa.  Si.  368.  212  ;  Williams  v.  (}.  W.  R.  Co.,  10 

(.'/)  Caider  and  Hebble  Nav.  Co.,  Ex.    16  ;    llutton  v.    Scarborough 

V.  Pil.ing,  14  M.  &  W.  76.  Hotel,  2  Dr.  6c  Sm.  521,  34  L.  J. 

'"  Hagerman  v.  Build'g  &  Sav.  643  ;  K.  v.  Rose,  5  E.  &  B.   49,  24 

Ass'n.  25  Ohio  St.  186  ;  Second  N.  L.    J.    130  ;   Bostock   v.    Stafford- 

Y.  Buililg  Assn  v.  Gallier,  cited  shire  R.  Co..  3  Sm.  &  G.  283,  25 

in   Cil.  Mut.  Loan,  etc.,  Ass'n  v.  L.  J.  325  ;  United  L;ind  Co.  v.  G. 

Webster,    25   Barb.    (N.    Y.)   263;  E.  R.  Co.,  L.  R.  10  Ch.  587  ;    Nor- 

Lynn   v.   Build'g    Ass'n,    (Pa.)    9  ton  v.  Loudon  &  N.  W.   R.  Co.,  9 

Centr.  Rep.  360.  And  .see  Occident,  (;h.  D.  623,  47  L.  J.  859  ;   Siiiliilu 

B.  &  L.  Ass'n  V.  Sullivan.  62  Cal.  v.  Thompson,  1  Q.  B.  D.  12. 


§    353]  STUICT    CONSTRUCTION.  4:93-- 

may  be  siiid  to  bo  the  rcriiilt  of  the  vast  number  of  decis- 
ions upon  questions  arising  under  such  enactments,  that. 
"  a  purely  statutory  authority  or  riglit  must  be  pursued 
in  strict  compliance  with  the  terms  of  the  statute.""'] 
Thus,  the  power  given  by  the  43  Eliz.  c.  2,  to  justices 
to  appoint  "  four,  three,  or  two  substantial  householders," 
as  parish  overseers,  is  not  well  executed  by  appointing 
more  than  four  (a) ;  or  by  appointing  a  single  one,  even 
when  he  is  the  only  householder  in  the  parish  {!)).  The 
355th  section  of  the  Merchant  Shipping  Act,  1854,  which 
empowers  the  Board  of  Trade  to  give  the  master  of  a  siiip  a 
certificate  to  pilot  "  any  ships  belonging  to  the  same  owner," 
was  construed  as  requiring  that  the  name  of  the  owner 
should  be  mentioned  in  the  certificate  ;  and  a  certificate  repre- 
senting another  person  as  the  owner  was  held  not  granted, 
in  compliance  with  the  statute  {o).  Where  trustees,  who 
were  authorized  to  borrow  30,000Z.  for  building  a  chapel, 
and  to  levy  the  amount,  with  interest,  by  a  rate,  borrowed. 
32,000^.,  and  made  a  rate  to  pay  the  interest  on  the  whole  of 
that  sum,  it  was  held,  not  only  that  they  had  exceeded  their 
power,  but  that  the  rate  was  bad  in  toto  {d).  [And  where 
an  act  authorized  the  formation  of  a  certain  number  of 
banks,  it  was  held,  that,  the  number  having  been  completed, 
no  new  banks  could  be  organized  in  the  places  of  such,  as,. 
from  time  to  time,  ceased  to  do  business."'     ISTor  would  a 

^'•*  Bish.,Wr.  L.,  §  119,  citiug  a  was    held,    that,     whfie    au    act. 

larire  miinber  of  cases.  authorized  a  company  to    appro- 

(a)li.   V.  Loxdalc,   1  Burr.   14") ;  priate,    from  time  to   lirac,    sucli- 

See  R.  V.  All  Saints,  13  East,  143.  springs  and    streams  as  it  might 

(b)  R   V.  Cousins.  4  B.  &  8.  849,  select,  for  the  purpose  of  bringing 

33  L.  J.  87  ;   R.  v.  Clifton,  3  East,  into  a  city,  for  the   supplying   of 

1G8.      Comp.   Preece  V.  Pullcv.  49  which  with  water  the  company  uas 

L.  J.  G8G,  and  comp.   under  trus-  organized,    an    additional     supply 

tee  Act,  1850,  s.  -32,  Shippcrdson's  thereof,  and  at  one  time  the  com- 

Trusts,  49  L.  J.  Ch.   619  :   Stokes'  pany  diverted  a  small  portion  of  n 

Trusts,    L.    R.    13  Eq.    333;   Har-  certaui  stream,  its  rights  were  not. 

ford's  Trusts,  13  Ch.  D.  135.  coulined  to  a  single  appiopriation 

(-•)  The  Earl  of  Auckland,  30  L.  of  any  stream,  so  as  to  I'xhaust  its 

J.  P.  I\I.  &  A.  1*21,  127.  powers  when  any  w^uer,  however 

' (d)   Richter  v.  Hughes,  2  B.  &  minute    in      quantity,     had    been 

C.  499.  diverted  ;  hut  neither  did  such  an 

>"  State  V.  Chase,  5  Ohio  St.  528.  appropriation  vest  the  right  to  the 

The  power  was  held  exhausted  by  entire  stream  in  the   company,  so 

t  e  first  exercise  of  it.      Compare  as  to  debar  the  sub-riparian  land- 

the  decision   in   Schepp   y.    Read-  holder's   claim  for   damages   by  a. 

ing,  2  Woodw.  (Pa.)  4U0,  where  it  lapse    of  the  time  prescribed  for 


494  STRICT   CONSTRUCTION.  [§  354 

power  to  charter  gas  coinpaiiies,  the  meaning  of  that  term, 
as  gathered  from  the  provisions  of  the  statute  conferring  the 
power,  heing  companies  manufacturing  and  furnishing  the 
manufactured  gas,  authorize  the  incorporation  of  companies 
to  supply  natural  gas  to  consumers. "°J 

§  354.  Acts  Investing  Private  Persons  with  Privileges.  Cor- 
porations.— As  regards  enactments  of  a  local  or  personal  charac- 
ter, which  confer  any  exceptional  exemption  from  acommon 
hurdcn  {((),  or  invest  private  persons  or  bodies,  for  their  own 
benelit  and  profit,  with  privileges  and  powers  interfering  with 
the  property  or  rights  of  others,they  arc  construed  more  strict- 
ly, perhaps,  than  any  other  kind  of  enactment.  The  Courts 
take  notice  that  they  arc  obtained  on  the  petitions  framed 
by  their  promoters  ;  and  in  construing  them,  regard  them, 
as  they  are  in  effect,  contracts  between  those  persons,  or 
those  whom  they  represent,  and  the  Legislature  on  behalf  of 
the  public.  Their  language  is  therefore  treated  as  the  lan- 
guage of  their  promoters,  who  asked  the  Legislature  for 
them  ;  [the  promoters,  I'ather  than  the  Legislature,  being 
considered  as  the  framers  ;'"]  and  when  doubt  arises  as  to  the 
construction  of  that  language,  the  maxim,  ordinarily  inappli- 
cable to  the  interpretation  of  statutes,  that  verba  cartarum 
fortius  accipiuntur  contra  proferentem,  or  that  words  are  to 
be  understood  most  strongly  against  him  who  uses  thcni,  is 
justly  applied.  The  benefit  of  the  doubt  is  to  be  given  to 
those  who  might  be  prejudiced  by  the  exercise  of  the  powers 
which  the  enactment  grants,  and  against  those  who  claim 
to  exercise  them  (?>).     Even  if  such  statutes  were  not  regaided 

bringing  an  action   for  such  dam-  li.    v.    CroliC,    Cowp.    301,     Lofft, 

ages    against    the    company  ;   but  438 ;     Gildart      v.     Gladstoiio,    11 

ciicli     new      appropriation     of    a  East,  685  ;    Hull  Dock  Co.    v.   La 

greater  quantity  of  water  from  tiie  March,    8    B.    &    C.    52  ;    Dudley 

same   stream    gave   new    rights  of  Canal  Co.    v.  Grazebrook,  1    B.  & 

action.  Ad.  59;  Hull  Dock  Co.  v.  Browne, 

'■6  Emerson  v.  Com'th,   108  Pa.  2  B.  ic  Ad.  58;   Per  Patteson,  J.. 

St.  111.    See  Addenda  to  J^  350.  in  R.  v.  Cumberwortli,  4  A.  &  E. 

('0  St-'G  ex.  gr.  Perchard  V.  IIcj--  741;  Blakemore  v.  Glamorgan- 
wood.  8  T.  11.468.  shiie  Canal   Co.,  1  M.  &   K.   154: 

"•'    Pvaleiuh,   etc.,  R.    R.   Co.   v.  Webb    v.    Manchester    R.    Co.,    4 

Reid,    64   ^.    C.    155.      See,  also.  Myl.    &    C.     116;     Stockton    and 

Wilmington,    etc.,    R.    R.    Co.    v.  Darlington   R.  Co.   v.   Rjarrett,    II 

Reid,    Id.    226  ;   McAden    v.    Jen-  CI.    &   ¥.    590,    7  M.   &  Gr.    870 ; 

kins.  Id.  796.  Scales  v.  Pickering,  4  Bing.  448  ; 

(6)  See  among  many  authorities,  Parker  v.  G.   W.   R..  7  M.   &   Gr. 


354] 


STRICT  CONSTRUCTION. 


495 


in  the  light  of  contracts  (a),  they  would  seem  to  be 
subject  to  strict  construction  on  the  same  ground  as  grants 
from  the  Crown,  to  which  they  are  analogous,'  arc  subject 
to  it.  As  the  latter  are  construed  strictly  against  the  gran- 
tee, on  the  ground  that  prerogatives,  rights,  and  emoluments 
are  conferi-ed  on  the  Crown  for  great  purposes  and  for  the 
public  use,  and  are  therefore  not  to  be  understood  as  dimin- 
ished by  any  grant  beyond  what  it  takes  away  by  necessary 
and  unavoidable  construction  (b) ;  so  the  Legislature,  in 
granting  away,  in  effect,  the  ordinary  rights  of  the  subject, 
should  be  understood  as  granting  no  more  than  passes  by 
necessary  and  unavoidable  construction.  A  corporation, 
indeed,  constituted  by  statute  for  certain  purposes,  is  regarded 
as  so  entirely  the  creature  of  the  statute,  that  acts  done 
by  it  without  the  pres(;ribed  formalities,  or  for  objects  foreign 
to  those  for  which  it  was  formed,  would  be,  in  general, 
null  and  void  (c).  [In  so  far  as  the  rights  granted  to  cor- 
porations are  destructive  of,  or  encroacli  upon,  public  or 
common  right,  they  are  undoubtedly  to  be  construed  most 
strongly  against  those  setting  them  up,  and  in  favor  of  the 
state  or  j)ublic  ;  they  are  not  to  be  extended  beyond  the  ex- 
press words  in  wlpch  the}'  are  given,  or  their  clear 
import;  and  whatever  is  not  given  in  unequivocal  terms,  is 
to  be  deemed  as  expressly  withheld."*     And  even  in  their 


253  ;  Eversfield  v.  Mid-Sussex  R. 
Co. ,  3  DeG.  &  J.  286  ;  Simpson  v. 
S.  Stiiirordshire  Water-worlvS,  34 
]..  .1.  Cli.  380;  R.  V.  Wycombe, 
L.  R.  2  Q.  B.  310  :  Mori^nu  v. 
IMetropolitan  R.  Co.,  L.  R.  4  C.  P. 
1)7 ;  Femvicli  v.  East  London  R. 
Co.,  L.  R.  20  Eq.  544 ;  per  Ciock- 
buru,  C.  J.,  in  Hipkins  v.  Birmini;- 
hiim  Gas  Co.,  6  II.  &  N.  250; 
Atty.-Geid.  v.  Furncss  R.  Co., 
47  "L.  J.  Cli.  776  ;  Lamb  v.  N. 
London  R.  Co..  L.  R.  4  Ch.  522  ; 
Clowes  V.  St  affords  li  ire  Potteries, 
L.  R.  8  Ch.  125. 

(a)  See  R.  v.  York,  and  Midland 
R.  Co.,  1  E.  &  15.  858.  [A  statute, 
though  containing  the  elements  of 
a  contract,  is  nevertheless  to  be 
construed  as  a  statute  :  Union  Pac. 
R.  R.  Co.  V.  U.  S.,  10  Ct.  of  CI.  548; 
aff'd  91  U.  S.  72.  Comp.  lluide- 
koper  V.  Douglass,  4  Dall.   391  ;  3 


Cranch,   1  ;   Rice  v.  R.   R.   Co.,  1 
Black,  358.] 

(b)  Per  Lord  Stowell  in  The 
Rebeckah,  1  Rob.  230. 

(c)  Chambers  v.  Manchester,  etc., 
R.  Co.,  5B.  &  S.  588. 

'■*  See  ]\Ioran  v.  Comm'rs,  3 
Black,  722  ;  Sprague  v.  Birdsali,  2 
Cow.  (N.  Y.)  419;  Rathbun  v. 
Acker,  18  Barb.  (N.  Y.)  393  ; 
McAfee  v.  R.  ]{.  Co..  36  IMiss.  669; 
Bridge  Co.  v.  R.  R.  (^o.,  13  N.  .T. 
Eq.  ^81  ;  1  Wall.  116;  Camden, 
etc.,  R.  R.  Co.  V.  Biiggs.  22  N.  J. 
L.  623  ;  Jersey  City  v.  R.  H.  Co.. 
40  M.  J.  Eq.  417;  Jersey  City,  etc., 
Co.  V.  Consumers'  Gas  Co.,  Id. 
427  ;  Stormfeltz  v.  Turnp.  Co.,  13 
Pa.  St.  555  ;  B"k  of  Pa.  v.  Com'tli, 
19  Id.  144;  Packer  v.  R  R.  Co.. 
Id.  211  ;  Pa.  R.  R.  Co.  v.  Canal 
Comm'rs,  21  Id.  9  ;  Allegheny  v. 
R.  R.  Co.,  26   Id.  355  ;   Dugan  v. 


496  STKlCr   CONSTRUCTION.  [§  35^ 

ovvu  internal  affairs,  tliev  are  held  to  strict  and  rii;id  con- 
formitj  with  the  powers  granted  and  the  manner  of  their 
exercise  pi^scribed  by  the  statutes  under  which  they  have 
their  being.  Thus,  where  an  act  authorized  certain  corpora- 
tions to  increase  their  capital  stocic,  allotting  the  increased 
shares  to  the  stockholders  pro  rata,  and  a  company  coming 
within  the  purview  of  the  act  increased  its  stock  and  allotted 
one  share  of  the  new  issue  to  the  holder  of  every  two  shares 
of  the  old,  but  upon  condition  that  he  pay  $10  per  sliare  for 
every  share  of  the  new  stock  issued  to  him,  and  also  $10  for 
the  privilege  of  taking  it,  the  condition  was  held  incompe- 
tent, and  the  company  compelled  to  issue  the  proportionate 
number  of  shares  coniing  to  the  complainant  without  his 
being  obliged  to  make  the  paynients  demanded.""  But  the 
strictness  that  is  to  be  applied  to  the  construction  of  a  grant 
of  corporate  franchises  is  in  no  case  permitted  to  be  such  as 
would  defeat  the  object  of  the  grant ;  so  that  a  power  given 
to  a  company  to  connect  "  their"  railroad  with  another^ 
authorizes  such  connection  of  a  road  owned  by  the  company 
in  pursuance  of  a  purchase  by  it,  as  well  as  one  actually  con- 
structed by  it,""  and  a  power  to  mortgage  its  property  for  the 
erection  of  a  building,  authorizes  a  mortgage  for  painting 
it."'  A  legislative  grant  is,  indeed,  like  any  other  legisla- 
tive enactment,  to  be  construed,  if  possible,  so  as  to  effect 
the  intent  of  the  grantors  ;  if  that  intent  is  doubtful,  under 
the  statute  making  it,  the  rule  of  construction  recognized  as 
applicable,  requires  the  doubt    to  be  resolved  against    the 

Brklge  Co.,  27  Id.  303  ;   Comlh  v.  power    to    "make   by-laws"    for 

R.  R.  Co.,  Id.   339;   West  Bruuch  the    sale     of    stock     for    unpaid 

Boom   Co.   V.    Dodge,  31   Id.  285  ;  assessments    does    not     audiorize 

Com'th  V.    Pass.    Ry.    Co.,  52  Id.  a    sale    in    the  absence  of  a  by- 

506  ;  Pa.  R.  li.  Co.'s  App.,  37  Leg.  law     providing    for     the      same  : 

Int.    (Pa.)   125;   Hartford    Bridge  Budd  v.Hy.  Co.  (Or.)15  Pacif.  Rep. 

Co.   V.    Perry  Co.,  29  Conn.   210;  659. 

Currier  V.  R.  U.  Co.,   11  Ohio  St.  "'S  Cleveland,  etc.,  R.   R.  Co.  v. 

228;  Indianapolis,  etc.,  R.  R.  Co.,  Erie,  27  Pa.  St.  380. 
v.  Kinney,  8  Ind.  402  ;    Young  v.  '^i    Miller    v.    Chance,   3   VAw. 

McKenzie,  3  Ga.  31  ;  Mayor  v.  R.  (N.  Y.)  399.      And  an  act,  allowed 

R.  Co.,  7  Id.  221  ;   Sugar  v.  Sack-  to  be   done    by  a    majority   of  a 

ett,    13  Id.  462  ;   Jiaieigh,  etc.,  R.  board  consisting  of   nine   trustees 

R.  Co.  V.  Reid,  64  N.  C.  155.  and   two  ex  ollicio   members,  was 

'"    Cunrungliara's      App.,      108  held  well  done  by  live,  not  including 

Pa.    St.    546.       And    a  statutory  the  two  ex  officio  members  :  Ibid. 


§§  355,  356]  STRICT  construction.  497 

grantee,  in  fiivor  of  tlic  public  ;'*'^  oi',  in  analogy  to  anotlier 
familiar  ])rin('i[)lc  of  statutory  interpretation,"'  the  con- 
struction is  to  be  such  as  will  make  it  accord  with  subse- 
quent legislation.'"*] 

§  355.  The  principle  of  strict  construction  is  less  applicable 
where  the  powers  are  conferred  on  public  bodies  for  essen- 
tially public  purposes;  as,  for  instance,  to  those  given  to  the.; 
Metropolitan  Board  of  Works  {a). 

§  35G.  Acts  Conferring  Exemptions  from  Common  Burdens  or 
Surrendering  Public  Rights — [It  is  a  settled  presumption,  in  the 
construction  of  statutes,  that  tlie  Legislature  does  not,  without 
express  declarations  or  clear  and  unmistakable  manifestation 
of  intent,  mean  to  be  understood  as  giving  away  any  public 
right  or  stripping  the  state  of  any  part  of  its  prerogative."* 
Upon  this  presumption,  as  well  as  npon  the  consideiation  of 
the  interested  origin""  of  statutes  conferi'ing  particular 
exemptions  from  general  burdens,  <?.  </.,  of  taxation,  rests  the 
rule  that  all  such  enactments  are  to  receive  a  strict  construc- 
tion.'" For  instance,  a  lot  of  ground  upon  which  a  church 
is  being  erected,  was  held  not  exempt  from  taxation  under  an 
act  which  exempted  "  churches,  meeting-houses,  and  other 
regular  places  of  stated  worship,"  especially  when  read 
together  with  a  constitutional  provision  permitting  exemp- 
tions only  in  certain  specific  cases,  among  which  are  enumer- 
ated "actual  places  of  religious  worship.""^'     But,  \vhilst  the 

'«2  Rice  V.  K.   R.   Co.,    1   Black,  i:}  X.  J.    Eq.    420 ;   Academy    of 

358.  Fine  Arts  v.   Philadelphia,  22  Pa. 

'«3  See  ante.  §  47.  St.  496  ;  Erie  Ry.  Co.  v.  Com'th 

18-*  Maysville  Turnp.  Co.  v.  How,  66  Id.  84  ;  Com'th  v.  R.    R.  Co.,  2 

14  B.  Moil.  (Ky.)  426.  Pears.    (Pa.)   389;   Bennett  v.  Mc- 

(n)    Per    Wood,    V.     C,    in    N.  AVliorter,  2  W.  Va.  441.     See,  also, 

London   R.   Co.  v.    IMetrop.    B.  of  Bourginnon    B.  A.,  v.  Coni'lh,  98 

Works,    Johns.    405,28  L.  .J.  Ch.  Pa.  St.' 54.     And  see  ante,  §^  163- 

909.     See.  also,  Pallister  v.  Graves-  164. 

end.    9   C.   B.    774  ;   Galloway   v.  '«"  Ante,  §  354. 

London  (Mayor  of),   T>.  R.  1  H.  L.  '^^  State   v.    Mills.  34   N.    J.   L. 

34  ;  Quinlon  v.  Bristol  (Mayor  of),  177  ;    Com'th  v.  Canal  Co.,  32  i\Id. 

L.  R.   17  Eq.   524;   Atty.-Genl.  v.  501  ;   Cincinnati   Collesje  v.    Ohio,. 

Cambriikie,   L.   R.    6   if.    L.    303  ;  19  Ohio,  110  ;  and  cases  in  preced- 

Riclinioud   v.    N.  London  R.  Co.,  \u<x    note    and    infra.      See,    also, 

L.    R.   ;j  Ch.  681  ;   Lyon  v.  Fish-  BulTalo  City  Cemetery  v.  Buffalo^ 

mons-crs'     Co.,      1     "App.,     669;  46  N.  Y.  506  ;  Republic  v.  llarai!- 

Vcnour's  Case,  3  Ch.  D.  522.     [See  ton,  21  111.  53. 

Sedgw.  326.]  ">**  JSIullen  v.  Erie  Co.,  85  Pa.  St. 

'**  Water  Comm'rs   v.    Hudson,  288.     Corap.  ante,  §  95. 

33 


498  STRICT    CONSTRUCTION.  [^  '>50 

person  claimiiic^  the  exemption  must,  in  obedience  to  the  rule 
of  strict  construction,  bring  liim^elf  within  both  the  letter 
and  spirit  of  the  enactment,  the  rule  applies  in  such  cases  as 
well  as  in  those  of  other  statnti's,  penal  as  well  as  remedial, 
that  other  acts  in  pari  materia  nun'  be  consulted  to  ascertain 
the  intent  of  the  Legislature.""  And  where  a  statute  pre- 
:8cribiTig  a  less  rate  of  taxation  for  certain  classes  of  property, 
€.  g.,  rural  lands  taken  into  a  city,  is  designed,  not  to  confer 
a  special  privilege  or  exemption,  but  to  make  an  equitable 
distribution  of  the  tax-burden,  it  is  to  be  more  liberally  con- 
strued as  affecting  the  claimant.""'] 

■'«»  See  Iluniiibal.  etc.,  R.  R.  Co.  by  its  capital  stock,  and  not  taxa- 

V.  Sliacklctt,  30  :\ro.  5.50.     It  was  ble  as  "  propcMty  owned  by  incor- 

lield  in  tbis  case,  tbat  tbe  roadbed,  porated  companies  over  and  above 

niacbinery  and  depots  of  a  railway  their  capital  slock." 

company,  and  other  property  used  '^°  Gillette  v.  Hartford,  31  Conn, 

by  it  in  operating  the  road,  are  to  351. 
be  deemed  part  of  and  represented 


§  357]  USAGE,    ETC.  409 


CHAPTER  XIII. 

Usage  and  Contemporaneous  Construction.     Legislative 
Construction.     Change  of  Language,  etc. 

Contemporaneous  Exposition. 

Judicial  and  Professional  Practice  and  Usage. 

Departmental,  etc.,  Usage. 

Limits  of  Effect  of  Contemporaneous  or  Practical  Construction. 

Particular  Customs. 

Stare  Decisis. 

Federal  and  State  Courts.     Courts  of  Different  States. 

Legislative  Declaration  of  Construction.      Later  Cognate  Acts. 

Earlier  Cognate  Acts. 

Use  of  same  Phraseology  in  Later  Act  in  Pari  Materia. 

Adoption  of  Previous  Construction  by  Re-enactment. 

Same  Phraseology  in  Analogous  Acts. 

Amendments  using  Same  Terms. 

Adoption  of  Construction  by  Transcribing  Foreign  Act. 

Effect  of  Legislative  Intimation  of  Erroneous  Opinion. 

Effect  of  Express  Enactment  of  Existing  Rules. 

Effect  of  Recitals  in  Statutes. 

When  and  how  Erroneous  Assumption  by  Legislature  may  have 

Force  of  Enactment. 
Change  of  Language. 

Omission  of  Material  Words  in  Former  Phraseology  Supplied. 
Variations  of  Phraseology  Treated  as  Insignificant. 
When  Difference    of    Language    Indicative    of    Difference    of 

Meaning. 
Variation  of  Language  in  Same  Act. 

Omitted  Words  of  Earlier  Act  when  not  Supplied  in  Later 
Words  Construed  in  Bonam  Partem. 
Multiplicity  of  Words. 

Same  and  Different  Meanings  in  Same  Word. 
Particular  Expressions  Frequently  Used  in  Statutes. 
Day,  Week,  Month,  etc. 
Computation  of  Time. 
Periodical  Recurrences. 
Computation  of  Distances. 

§  357.   Oonlemporaneous  Exposition. — It  is  said  that  the  best 
exposition  of  a  statute  or  any  other  document  is  that  which 


§ 

357. 

§ 

358. 

§ 

360. 

§  361. 

§ 

363. 

§ 

363. 

§  364. 

§ 

365. 

§ 

366. 

§ 

367. 

§ 

368. 

S 

369. 

§ 

370. 

§ 

371. 

§ 

372. 

§  374. 

§ 

375. 

§ 

376. 

§  378. 

§ 

380. 

§  381. 

§ 

382. 

§  383. 

§ 

384. 

§ 

385. 

^ 

386. 

§ 

387. 

§ 

388. 

§ 

389. 

§ 

390. 

§ 

394. 

395. 

500 


USAGE,    ETC. 


[§35T 


it  has  received  from  conteinporarj  autliority.  Optima  est 
legum  intbrpres  coiisnetndo  {a).  Contemporaiiea  expositio 
est  optima  et  fortissinia  in  logo  (b).  Where  this  has  been, 
given  by  ciiactmont'  or  judicial  decision/  it  is  of  course  to 
be  accepted  as  conclusive  (c).  But  further,  the  meaning 
publicly  given  b\'  contemporary,  or  long  professional  usage, 
is  presumed  to  be  the  true  one,  even  when  the  language  has 
etymologically  or  po})uhu-lyu  different  meaning.  Those  who 
lived  at  or  near  the  time  when  it  was  passed,  may  reasonably 
bo  supposed  to  be  better  acquainted,  than  tiieir  descendants, 
with  the  circumstances  to  which  it  had  relation,  as  well  as 
with  the  sense  then  attached  to  legislative  expressions  {d);. 
and  the  long  acquiescence  of  the  Legislature  in  the  interpre- 
tation put  upon  its  enactment  by  notorious  practice,  may, 
perhaps,  be  I'ogarded  as  some  sanction  and  approval  of  it  {e). 
["  It  gives  the  sense  of  community  of  the  terras  made  use  of 
by  the  Legislature.  If  there  is  ambiguity  in  the  language,  the 
understanding  and  application  of  it  when  the  statute  first 


{a)  Dig.  i.  3,  37.  [See  Bish., 
Wr.  L..  §  104.] 

{}))  2  Inst.  11  ;  [Phila.  Sc  Erie  R. 
1\.  Co.  V.  Cixlawissa  K.  R.  ()o.,  53 
Pii.  St.  20,  61  ;  Grant  v.  lliclvox, 
04  Id.  334.  336  ;  Packanl  v.  Ricli- 
ardson,  17  Mass.  121,  143.] 

'  See  Phila.  &  E.  R.  li.  Co.  v. 
C.  R.  R.  Co.,  sujira. 

*  See  Grant  v.  Hickox,  snpra. 

(c)  See  ex.  s>r.  per  llnUor.k.  B.. 
in  Bootli  V.  Ibbotson,  1  Yo.  &  ,1. 
360  ;  per 'V'ludii],  C.  J.,  in  Bank  of 
England  v.  Anderson,  3  Bing.  M. 
C-  666  ;  per  Parke,  B.,  in  Doe  v. 
Owens,  10  M.  &  W.  521  ;  per  Mar- 
tin, B.,  in  (hirlewis  v.  Mornington, 
7  E.  &  B.  283.  [The  fact  Ihat  a  stat- 
xitii  was  omitted,  and  another  of 
later  date  upon  the  same  subject 
published,  by  the  digesters  of  the 
laws  of  a  state,  co.iieniporaneous 
with  the  enactment  of  the  later 
statute,  and  shortly  after  it  had 
become  a  law,  is  referred  to,  in 
Weiss  V.  Iron  Co.,  58  Pa.  St.  295, 
302,  by  Sharswood,  J.,  an  eminent 
■jurist,  as  some  indication  tliat  the 
latter  sliould  be  construed  as 
repealing  llie  former  by  iuiplica- 
tion.  See,  to  similar  effect, 
McMicken   v.    Commouwcalth,  58 


Pa.  St.  213.  219.] 

(fZ)  Co.  Litt.  8  b.  ;  3  Inst.  18. 
282  ;  Bac.  Ab.  Stat.  I.  5  ;  2  Hawk, 
c.  9,  s.  3  ;  Sheppard  v.  Gosnold, 
Vaugh.  169  ;  per  Lord  ]\Ianstield 
in  R.  V.  Varlo,  Cowp.  250  ;  2^^'' 
Lord  Kenvou  in  Leigh  v.  Kent,  3 
T.  R.  364,  Blankley  v.  Winslau- 
ley.  Id.  286,  and  R.  v.  Scott,  Id. 
604;  per  Buller,  J.,  in  R.  v.  Wal- 
lis,  5  T.  R.  380  ;  per  Lord  Ellen- 
borough  in  Kitchen  v.  Bartsch,  7 
East,  53;  per  Best,  C.  J.,  in  Stewart 
V.  Lawton,  1  Bing.  377 ;  per  Lord 
Hardwicke  in  Atty.  Genl.  v.  Par- 
ker, 3  Atk.  576  ;  per  Lord 
Eldon  in  Atty. -Genl.  v.  Forster, 
10  Ves.  338;  per  Parke,  B.,  in 
Jewison  v.  Dyson.  9  M.  &  W. 
556,  and   (.'lift    v.   Schwabe,   3    C. 

B.  469  ;  R.  V.  ]\Iashiter.  6  A.  &  E. 
153  ;  R.  V.  Davie,  Id.  374  ;  New- 
castle V.  Atty. -Genl.,  12  CI.  &  F. 
419;  Smith  v.  Lindo,  4  C  B.  N. 
S.  395  ;  R.  v.  Ilerford,  3  E.  &  E. 
115;    Attv.-Genl.  v.  Jones.  2  IL  & 

C.  347  ;  Marshall  v.  Bp.  of  Exeter, 
13  C.  B.  N.  S.  820,  31  h.  J.  M.  C. 
262  ;  Montrose  Peerage,  1  Macq. 
H.  L.  401. 

(e)  See  per  James,    L.  J.,  in  The- 
Anna,  1  P.  D.  259. 


§  358]  USAGE,     ETC.  501 

comes  into  operation,  sanctioned  by  a  long  acquiescence  on 
the  part  of  the  Legishiture  and  judicial  tribunals,  is  the 
strongest  evidence  that  it  has  been  rightly  explained  in 
practice."']  It  often  becomes,  therefore,  material  to  inquire 
what  has  been  done  under  an  Act ;  this  being  of  more  or 
less  cogency,  according  to  circumstances,  for  determining  the 
meaning  given  by  contemjjoraneous  exposition  {a).  [A 
notable  instance,  in  recent  judicial  history,  is  the  case,  in 
which,  upon  the  trial  of  an  information  at  the  suit  of  the 
Attorney-General,  against  a  member  of  the  House  of 
Commons  for  voting  without  having  taken  the  oath  of  alle- 
giance within  the  meaning  of  the  Parliamentary  Oaths  Act 
of  1S6(),  as  amended  by  the  Promissory  Oaths  Act  of  1868, 
evidence  of  the  practice  observed  in  that  body  as  to  taking* 
the  oath  of  allegiance  was  held  admissible  for  the  purpose  of 
explaining  the  construction  of  those  statutes.*  Even  where, 
were  the  matter  res  integra,  tiie  construction  of  a  statute 
would  be  different,  that  placed  upon  it  by  contemporaneous 
exposition  and  long  usage  under  it,  will  often  prevail.  Thus, 
of  an  early  and  generally  prevailing  practical  construction  of 
a  power  given  by  an  act  to  dispose  of  lands  as  including  a 
power  to  sell  and  convey  the  common  lands,  it  was  said,  that 
"  long  and  continued  usage  furnishes  a  contemporaneous 
construction  which  must  prevail  over  the  mere  technical 
import  of  words."^] 

§  358.  Judicia}  and  Professional  Practice  and  Usage. — It  has 
been  sometimes  said,  indeed,  that  usage  is  only  the  inter- 
preter of  an  obscure  law,*  but  cannot  control  the  language 

3  Packard     v.     Richardson,     17  totlic  uniform  practice  under  them, 

Mass.  121,  143.     See,  also,  in  sup-  if  this  practice  lias  continued  for  a 

port  of  the  same  principle :  iMcKean  considerable  period  of   time;"  cit. 

V.  Delancy,  5  Crancli,  22;  llahnv.  Sherwin   v.  Bugl)ee,    IG    Vt.  444; 

U.   S.,   107   U.   S.   402;  Rogers  v.  State   v.    Cooii,   20  Ohio  St.  259; 

Goodwin,   2   JVlass.     475;    Op.    of  State   v.    Severance,    49    Mo.    401 

.luslices,     3     Pick.     (Mass.)     517;  (city  ordinance). 

Steiner  v.  Coxe,  4  Pa.  St.  13,  28;  {«)  R.  v.  Canterbury  (Abp.  of). 

Graham's  App.,  1  Dall.  (Pa.)  loti  ;  11  Q.  B.  581.  per  Coleridge.  J. 

Kenion    v.    Hill,    1  I.a.    An.    419;  •»  Attv.-Gcnl.  v.   Bradlaugh,  (C. 

Morrison  v.   Barksdale,   Harp.  (S.  A.)  L.  K.  9  Q.  B.  D.  (M',. 

C.)    101,    and     cases     infra.       In  '■  Rogers  v.   Goodwin,    2    Mass. 

French      v.       Cowan,      (Me.)      4  475,  477-8. 

New    Eng.    Rep.   682.   680,    it    is  •*  Bailey  v.  Rolfe.  16  N.  11.  247. 

said:      "In     construing    statutes  Antl   see    Chestnut   v.    Shane,    16 

uj^plicable  to  public  corpoiations,  Ohio,  599. 
<'Ourts  will  attach  no  sliiiht  weight 


502       -  USAGE,     ETC.  [§  358 

of  a  plain  one  ;'  and  that  if  it  has  put  a  wrong  meaning  on 
nnatnhignous  Language,  [or  is  contrary  to  its  obvious 
meaning,*]  it  is  rather  an  oppression  of  those  concerned  than 
an  exposition  of  the  act,  and  must  l)e  con-ected  {a).  It  may, 
indeed,  well  be  the  yu\q,  as  Lord  Eldon  hiid  it  down  in  a 
case  of  a  breach  of  trust  of  charity  property,  that  if  the 
enjoyment  of  property  had  been  clearly  a  continued  breach 
for  even  two  centuries,  of  a  trust  created  by  a  deed  or  will, 
it  would  be  just  and  right  to  disturb  it  {b).  But  it  seems 
different  where  the  Legislature  has  stood  by  and  sanctioned 
by  its  uninterposition  the  construction  ])ut  upon  its  own 
language  by  long  and  notorious  usage  ;  and  the  proposition 
above  stated  certainly  falls  short  of  the  full  effect  which  has 
been  often  given  to  usage.  Authorities  are  not  wanting  to 
show  that  where  the  usage  has  been  of  an  authoritative  and 
public  character,its  interpretation  has  materially  modified  the 
meaning  of  apparently  unequivocal  language.  Thus,  the 
statute  1  Westm.  c.  10,  for  instance,  which  enacts  that 
coroners  shall  be  chosen  of  tiie  most  legal  and  wise  knights,, 
has  always  been  understood  to  admit  of  the  election  of 
coroners  who  are  not  knights  (c).  So,  a  power  given  by  the 
6  Hen.  8,  c.  G,  to  the  judges  of  the  Queen's  Bench,  to  issue 
a  writ  of  procedendo,  was  held,  from  the  course  or  practice,, 
to  be  exercisable  by  a  single  judge  at  chambers  (d).  Although 
the  31  Eliz.  c.  5,  which  linuted  the  time  for  bringing  actions 
on  penal  statutes  to  two  years,  when  the  action  was  brought 
for  the  Queen,  and  to  one  year,  when  brought  as  well  for  the 
Queen  as  for  the  informer,  was  silent  as  to  actions  brought 
for  the  informer  alone ;  it  was  held,  partly  on  the  ground  of 
long  professional  understanding,  that  the  last-mentioned 
actions  were  limited  to  one  year  {e).  Though  the  15  Rich. 
2  enacted  that  the  Admiralty  should  have  no    jurisdiction 

''  Atty.-Gonl.  v.    Bank,   5  Irod.  wicke,    1    II.    &    N.    53,   and  in. 

Eq.    (N.   C.)  71;  Bailey  v.    Boll'e,  Pocliiii  v.  Dunconibc.  Id.  856. 

supra.                               *  (|'>)  Po'    Lord    Eldon    in    Atty.- 

«  Atty.-Genl.  v.  Bank,  supra.  Gcnl.  v.  Brislol,  2  Jac.  &  W.  321. 

(a)   It.    V.     Canterbury,    supra  ;  (c)  2  Hawk.  c.  9,  s.  2. 

Vaugh.      170;      and     per      Lord  {d)  K.  v.   Scaife,  17  Q.   B.  238. 

Brougham     in     Dunbar    v.    Box-  See  Leigli    v.    Kent,  3  T.  R.  362. 

burgh.  3  CI.  &  F.  854;  per  Grose,  Also  :   Stuart  v.  Lainl,   1  Cranch, 

J.,  in  R.  V.  Hogg,  1  T.  R.  123;  per  299,  post,  i^  527. 

Pollock,  C.  B.,  in  Gwyn  v.   Hard-  (c)  8  Anne,  c  14;  Dyer  v.  Best,, 

L.  R.  1  Ex.  152. 


§   358]  USAGE,  ETC.  503 

over  contracts  made  in  the  i)odios  of  counties,  seamen 
engaging  in  England  liavc,  nevertheless,  always  been 
admitted  to  sne  for  wages  in  that  Court  {a),  where  the 
remedy  is  easier  and  better  than  in  the  Common  Law  Courts  ; 
on  the  ground,  it  has  been  said  (i^),  that  communis  error  facit 
jus ;"  or  rather,  as  was  observed  by  Lord  Kenyon  (c),  not 
communis  error,  but  uniform  and  uifl)rok(;n  usage,  facit  jus. 
''  Were  the  language  obscure,"  saiti  Lord  Campbell  in  a 
celebrated  case,  "instead  of  being  clear,  we  should  not  be 
justified  in  differing  from  the  construction  put  upon  it  by 
contemporaneous  and  long  continued  usage.  There  would 
be  no  safety  for  property  or  liberty  if  it  coidd  be  successfully 
contended  that  all  lawyers  and  statesmen  have  been  mistaken 
as  to  the  true  meaning  of  an  old  Act  of  Parliament "  {d).  If 
we  -find  an  uniform  interpietation  of  a  statute  materially 
affecting  property  and  perpetually  recurring,  and  which  has 
been  adhered  to  without  interruption,  it  would  be  impossible 
to  introduce  the  precedent  of  disregarding  that  intei'preta- 
tion  (e).  [On  the  c^^ntrary,  such  an  interpretation,  under 
which  property  rights  have  been  acquired,'"  from  a  change 
of  which  infinite  mischief  would  result,"  will  be  upheld,  if 
possible ;  nor  can  a  long  settled  practice  be  disregarded, 
although  it  originated  in  error.'*]  The  Central  Criminal 
Court  Act,  4  &  5  Will.  4,  c.  36,  which  empowers  the  judges 
of  that  Court,  or  any  "  two  or  more  "  of  them,  to  try  all 
offences  which  might  be  tried  under  a  conunission  of  oyer 
and  terminer  for  London  or  Middlesex,  was  construed  to 
-authorize  a  single  judge  to  try ;  such  having  been  the 
inveterate  practice  under  the  Act  (/).      When  the  question 

(a)  Smith  v.  Tillcy,  1  Keb.  712.  {<-)  Per     Lord      Westbiiry.     in 

(b)  Per   Lord    Holt   in   Clays   v.      Moriraii  v.    Crawshay,  L.  K.    5  H. 
Sud<,n-ave,  1  Salk.  83.  L.  304.  320. 

» See  recognilion  of  this  principle  '"  7tV    ^Yar(^c•ld.     22     Cal.      'A: 

as  to  conveyances  of  inoperly  by  Brown  v.  State,  5  Col.  490. 

married  \vo"men  without  aeknowl  "  Van  Loon   v.   Lyon,    4   Daly, 

edginent,  etc.,  in  Davey  v.  Turner,  (N.  Y.)  149. 

1    Dall.    (Pa.)    11.    13;     Ll<>yd    v.  i- State  v.  Chase,  5   Har.    &   J. 

Taylor.  Id.    17;  Kirk  v.   Dean,    2  (Md.)  303. 

Binn.  (Pa.)  341,  345.  (/)   R.  v.  Leverson,  L.  R.  4  Q. 

(c)  In  R.  V.  Essex,  4  T.   R.  594.  B.  394.     See    Stuart    v.    Laird,    1 
\d)  Gorham  v.  Bp.  of  Exeter,  15  Crancli,  299;  and  per  James,  L.  J., 

Q.  B.  73.  See,  also,  per  Cur.  in  in  The  Anna.  1  P.  D.  259.  Comp. 
llebbert  V.  Purchas,  L.  R.,  3  P.  C.  bowever,  Clow  v.  Harper,  3  1.x. 
050.  D.  19S 


504  USAGE,  ETC.  [§  359 

arose  whether  a  person  convicted  ut  one  time  of  several 
offeuees  could  be  considered,  at  the  time  of  the  adjudication, 
as  "  in  prison  undergoing  imprisonment,''  within  the  25th 
sect,  of  the  11  &  12  Vict.  c.  43  (which  authorizes  the 
■convicting  justice,  in  that  case,  to  make  the  period  of 
imprisonment  for  the  second  offence  begin  from  the 
expiration  of  that  of  tlie  first),  it  was  decided  in  tlie  affirm- 
ative, partlj^,  indeed,  in  conformity  with  the  construction  put 
on  the  anah)gous  enactment  in  the  7  &  8  Geo.  4,  c.  28,  but 
partly  also  in  consequence  of  the  practice  of  the  judges  for 
forty  years  (a). 

§  359.  In  all  these  cases,  a  contrary  resolution  would,- to 
use  the  words  of  Parker,  C.  J.,  (/>)  have  been  an  overturning 
of  the  justice  of  the  nation  for  years  past.  [It  is,  of  course, 
impossible  to  lay  down  any  rule  as  to  the  length  of  time 
required  to  iiuike  usage  an  authoritative  expounder  of  a 
statute.  In  one  case  it  was  said,  that,  "  where  you  can  carry 
back  the  usage  for  a  century,  and  have  no  proof  of  a  contrary 
usage  before  that  time,  you  fairly  reach  the  period  of 
contemporanea  expositio.'"  In  other  cases,  an  unbroken 
usage  of  500  years,"  of  200  years,"  of  a  century,"  of  50 
years,"  of  40  years,''  of  30  years  or  more,'"  is  appealed  to 
for  the  purposes  of  exposition.  But  it  may,  in  general,  be 
said,  that  the  force  of  contemporaneous  exposition,  or  the 
exposition  involved  in  professional  usage,  is  most  properly 
confined  to  old  statutes  ;  whereas  a  recent  statute,  when 
brought  into  controversy,  is  to  be  construed  according  to  its 
terms,  not  according  to  the  views  taken  of  it  by  the  parties 
in  interest.'^''  And,  although  in  this  country  a  statute  nuiy 
be  termed,  and  treated  as,  an  old  statute,  which,  in  England, 

(a)  R.  V.  Cufbush,  L.  R.  2  Q.  B.  '"  Packard  v.  Richardson,  17 
373.      See,  also,  the  Duke  of  Hue-      Mass.  121,  143. 

clench  V.   Mcliop.    B.    of  Works,  ''  Lord  Feinioy's  Claim  to  Vote, 

L.  R.  5  Ex.  251;  Mignault  v.  Malo,  5  11.  L.  C.  729,  785. 

4  P.  C.  12',i,  130.  "*  R.  V.  Cutbush,  supra. 

(b)  In  R.  V.  Bewdley,  1  P.  Wms.  '»  Pease  v.  Peck,  18  How.  595  ; 
223  U.  S.  V.    Rec-oiiler,  1  Blatchf.  218, 

'■'Dunbar  V.  RoxbuiiTh,    3  01.  &  223;   Clark  v.    Dotter,  54  Pa.  St. 

Fin.,  at  p.  ;354.  215,  21G. 

»  Mansell  v.  R.,  8  E.  &  B.  54,  72,  ^o  Clyde  Nav.  Trustees  v.  Laird, 

111.  L.  R.  8   App.  Cas.   673,  j)er  Lord 

'5   Gnrham   v.    Exeter,  15  Q.  B.  Watson. 
'■>2.  GO. 


:§  360] 


USAGE,  KTC. 


505 


would  not  be  so  rcfi^ardod  or  trciited,  yet,  tnutati.s  nintandis, 
•the  principle  just  stated  would  ^eein  to  be  here  recognized."' 

§  360.  Departmental,  etc.,  Usage.— [It  is  not  only  the  practice 
•of  courts  in  regard  to  statutes  that  is  respected  by  the  superior 
courts, — although  it  is  said,  that,  where  tlie  construction  of 
an  act  is  doubtful,  one  long  acted  upon  by  the  inferior  courts 
will  generally  be;  adopted  by  the  supreme  tribunal"* — but  of 
almost  equal  dignity  is  the  practical  construction  put  upon 
an  act    by  the  governmental    officers    particulai-ly    charged 
with  its  execution,"  especially  where  so  long  continued  as  to 
have  grown  into  a  rule  of  departmental  practice."     Thus  the 
•construction    of  a  statute  adopted  and  acted  upon,  by  the 
executive,  in  the  execution  of  his  duty  to  give  effect  to  the 
laws,"    or    by    the    secretary    of    the    treasury  ;°'   or  the 
•construction  of  a  general  insurance  law   of   a   state  by  its 
.attorne3'-general  and  other  officers  required  to  act  under  it," 
will,  in  cases  of  doubt  and  ambiguity, — but,  it  is  said,  only 
in  such  cases,^" — be  adopted  by  the  courts  ;  or,  at  least,  not 
•disregarded  l)y  them,  except  for  cogent  reasons.'''     As,  how- 
ever, no  such  usage  can  alter  the  law,  it  cannot,  in  any  proper 
sense,  be  binding  upon  the  courts,  bound  as  they  are,  to  con- 
strue all  laws  coming  before  them  according  to  their  own  judi- 
cial views. ^^      Nor,  on  the   re-enactment   of   a  statute,  with 
additions,    would    the     departmental     construction    of    the 
original  act  control  the  construction  of  the  new  one,  especially 
where  this  would  nud^e  some  part  of  the  additions  repugnant 


"  See  Packard  v.  Ricbardson,  17 
Mass.  131 ;  Cliesiuut  v.  Sliatie,  IG 
Ohio,  599. 

'^'^  Plummer  v.  Plummer,  37 
Miss.  185;  luid  see  Clark  v.  Dotter, 
.54  Pa.  !St.  215. 

-^  Stuart  V.  Leigh,  1  Cranch, 
29!)  ;  U.  S.  V.  Bauk,  6  Pet.  29 ; 
Edwiud  V.  Darby,  13  Wheat.  206  ; 
Union  Ins.  Co.  v.  Ho<;e.  21  How. 
35  ;  U.  S.  V.  Moore.  95  U.  8.  760  ; 
Brown  v.  U.  S.,  113  Id.  561)  ;  The 
Laura.  114  Id.  411  ;  Mailiews  v. 
■  Shores,  24  111.  27;  Godtlard  v. 
Gloninger,  5  Watts  (Pa.)  209; 
Weslbrook  v.  ]\Iiller,  56  Mich.  148; 
Scanlan  v.  Childs,  33  Wis.  663; 
and  cases  infra. 

'-•■*  U.  S.  V.  Gilmore,  8  Wall.  330; 
so,  at  least,  as  to  bind  the  drpart- 


meut  as  to  transactions  past  before 
the  rule  is  changed  :  Ibid. 

25  U.  S.  V.  Lytle,  5  McLean,  9  ; 
and  see  Westbrook  v.  Miller, 
supra. 

-'•i  Ilahn  V.  U.  S.,  14  Ct.  of  CI. 
305  ;  aff'd,  107  U.  S.  402. 

-^  Union  Ins.  Co.  v.  Hoge, 
supra. 

•■'«  U.  S.  V.  Graham,  110  U.  S. 
219. 

29  U.  S.  V.  Johnston,  124  U.  S. 
31  L.  ed.  389. 

3»  U.  S.  V.  Macdaniel,  7  Pet.  1, 
14  ;  U.  S.  V.  Diik>on.  15  Id.  141  ; 
Greely  v.  Thompson.  10  How.  225; 
U.  S.  V.  Graluun,  supra  ;  lie 
Manhattan  Ins.  Insfn.  83  N".  Y. 
142. 


506  Ut^AGE,  ETC.  [§  361 

to  the  body  of  the  enactment.''  Still  less,  where  a  rule  of 
construction  has  been  thus  established  as  to  one  statute,  but 
its  application  to  a  later  one  forbidden  by  the  Legislature^ 
will  the  court  enforce  its  application  to  a  yet  more  recent 
statute  of  the  same  class,  if  denied  by  the  department,'"] 

^  361.  Limits  of  Effect  of  Contemporaneous  and  Practical  Con- 
struction.— The  understand in<^  which  is  accepted  as  author- 
itative on  such  questions,  however,  is  not  that  which  has- 
been  speculative  merely,  or  floating  in  the  minds  of  profes- 
sional men  ;  it  must  have  been  acted  on,  and  acted  on  in 
general  practice  (a),  and  publicly.  A  mere  general  practice, 
for  instance,  which  had  grown  up  in  a  long  series  of  years, 
on  the  part  of  the  otiicers  of  the  crown,  of  not  using  patented 
inventions  without  remuneration  to  the  patentee,  under  the 
impression  that  the  Crown  was  precluded  from  using  them 
without  his  license,  was  held  ineflEectual  to  control  the  true 
construction  or  true  state  of  the  law  ;  which  was  that  the 
Crown  was  not  excluded  from  their  use  (b).  [Nor  can  a 
custom  at  variance  with  the  plain  meaning  of  the  law  be 
sustained  as  a  construction  of  it.  Thus,  an  acceptance  given 
by  the  secretary  of  war  to  contractors  upon  whose  contract 
no  payment  was  due,  was  held  void,  either  as  an  advance 
upon  the  contract  or. as  a  loan  of  the  public  credit,  both  of 
which  were  prohibited  by  act  of  congress,  notwithstanding^ 
such  a  usage  had  sprung  up  in  the  department.''  So,  where 
the  compensation  of  a  public  officer  is  flxed  by  local  statute, 
he  cannot  recover  additional  compensation  for  expenses 
incurred  by  him  in  the  performance  of  his  official  duties, 
although  by  a  usage,  long  antedating  the  statute,  such  in- 
cidental expenses  may  have  been  paid  without  objection  ;'* 
for,  whilst  an  immemorial  custom  may  control  the  common 
law,'*  both   the  latter  and  the  custom,  however  venerable,. 

2'  Dollar  Sav.   B'k  v.   U.  S.,  19  Cb.  D.  370. 

Wall.  227.  (b)  Fcatlicr  v.  R.,  G  B.  &  S.  257, 

3-    U.    S.    V.    Gilmoro,   8  Wall.  [)'»  L.  J.  200. 

330.  sapeirce  v.  tJ.   S.,  1  Ct.  of  CI. 

a)   Per   Lord     Ellenborougli    in  270. 

IshcTwood  V.  Oldknow.  3  M.  &  S.  '-^  Albriiiht  v.   Bedford  Co.,  106 

396  ;   per  Lord   C'otlenham  in  the  Pa.  St.  582. 

Waterford  Peerage,  6  CI.  &  F.  173;  ^^  Delaplane     v.     Crenshaw,    15 

per  James,   L.  J.,  in  Jie  Ford,  10  Gratt.  (Va.)  457. 


§  3G2]  USAGI5,  ETC.  50T 

must  yield  to  positive  eiuietinent.°°  Yet,  where  the 
authorized  publication  of  territorial  laws,  framed  by  com- 
missioners under  an  act  of  Congress,  contained  a  saving,  in 
the  statute  of  limitations,  as  to  persons  beyond  seas,  which 
was  retained  in  successive  revisions  under  territorial  and 
state  authority,  and  acquiesced  in  by  the  people  and  the 
courts  for  a  period  exceeding  30  years,  it  was  held,  that, 
although  as  adopted  by  the  Commissioners,  tlie  statute 
contained  no  such  saving,  the  words  expressing  it  having 
been  erased  in  the  original  manuscript,  it  must  nevertheless 
be  taken  to  bo  a  part  of  the  law."  And  similarly,  where 
the  statute  roll  of  a  municipal  charter  gave  the  town  a 
right  to  impose  a  fine  of  $90  for  certain  offences  against 
ordinances,  but  the  printed  statutes,  for  years,  printed  $20, 
it  was  held,  in  an  action  to  recover  the  penalty,  that  the 
printed  statutes  must  govern. ^^] 

§  362.  Particular  Customs An  universal  law  cannot  receive 

different  interpretations  in  different  towns  {a).  A  mere 
local  usage  cannot  be  invoked  to  construe  a  general  enact- 
ment, even  for  the  locality  {h).  A  fortiori  is  this  the  case, 
when  the  local  custom  is  manifestly  at  variance  with  the 
object  of  the  Act ;  as,  for  instance,  a  custom  for  departing 
from  the  standard  of  weights  and  measures,  which  the  Legis- 
lature plainly  desires  to  make  obligatory  on  all  and  every- 
where (c).  [The  same  is  true  as  to  customs  in  particular 
businesses.  Thus,  an  act  that  "  twenty  hundreds  make  one 
ton,"  cannot  be  controlled  by  a  custom  in  a  particular  busi- 
ness making  2240  pounds  a  ton.^'  Nor  can  it  be  shown  that 
the  Legislature,  in  passing  an  act  inconsistent  with  a  custom, 
and  sufficient  in  itself  without  the  same,  and  silent  as  to  it, 
knew  of  the   existence   of   the   custom,  with   a   view   to   an 


36  Ibid.;     Albright    v.    Bedford  [Paull    v.    Lewis,   4  Watts.    (Pa.) 

Co.,  supra.  402;  Evans  v.    Myers,  25  Pa.    St. 

31  Pease  v.  Peck,  18  How.  595.  114;  Ham  v.   Sawyer,  38  Me.  o7.] 

38  Pacific  V.  Seifcrt,  79  :\Io.  210.  (c)  Noble  v.  Diirell,  ;3  T.  R.  271. 

The  sylhibus  of  the  decision  styles         39  Godcharies  v.    Wigeman,  113 

this  an  "exceptional  case."  Pa.  St.  4ol.     For  caution  as  to  the 

(fl)  P<;r  Grose,  J.,  in  R.  V.  Hogg,  adoption    of    usages   among   mer- 

1  T.  R.  728.  "  chants,   as  rules  of  law,  see  Lau- 

{b)  R.    V.    Saltren,    Cald.     444.  fear  v.  Blossman,  1  La.  An.  154. 


508  STARE   DECISIS.  [§   363 

inference  tluit  tlie    Legislature,  by   such    silence,    intended 
to  sanction  it."* 

§'363.  stare  Decisis.— [Ujion  the  weight  of  usage  and  con- 
temporaneous construction,  sanctioned  by  the  highest  author- 
ity, rests,  at  least  in  part,  the  maxim  of  stare  decisis  as 
ajjplied  to  the  interpretation  of  statutes.  "  When  doubtful 
words  have  received  the  same  interpretation  in  a  succession 
of  cases,  and  the  Legislature,  which  is  presumed  to  know  of 
such  decisions,  has  not  expressed  its  dissent  by  a  declaration 
of  the  law  or  other  positive  enactment,  the  courts  will  con- 
sider themselves  bound  to  adopt  that  meaning.""'  As  has 
been  seen,"  the  judicial  interpretation  of  a  statute  becomes 
a  part  of  the  statute  law,  and  a  change  of  it  is,  in  practical 
effect,  the  same  as  a  change  of  the  statute.  Where,  there- 
fore, a  decision,  or  a  series  of  decisions,  has  become  a  ruh;  of 
property,  it  is  evident  that  justice  and  reason  require  it  to  be 
adhered  to,  so  long  as  the  statute  upon  which  it  is  based 
remains  unchanged."^  But  even  in  other  matters  of  statutory 
interpretation,  not  involving  any  lundamental  principles  or 
rules  of  propert}-,  but  questions  of  practice,  the  same  princi- 
ple applies,  although  the  decisions  under  which  a  practice 
has  grown  up  be,  in  truth,  erroneous."  Upon  this  subject, 
however,  a  recent  decision  of  the  Supreme  Court  of  Penn- 
sylvania seems  to  lay  down  the  only  safe  and  reasonable  rule. 
"  Where  a  rule  of  property  has  been  established,  it  is  better 
to  let  it  stand,  although  subsequent  experience  should  sat- 
isfy us  that  it  is  an  erroneous  one.  A  rule  of  property  can  only 

'"^  Dc'liipliuto    V.    Crensluiw,    15  iu  uddition  to  some  of  the  above 

Gnitt.  (Va.)  4ry7.  cases  :  He  Warfield,  22  Cal.  51. 

•"  Wilb.,    p.    147.      See,    Bish.,  ''•*  Lauve's  Succes.'-ion,  6  La.  An. 

Wr.  L.,  s  104a.  529;   Wolf   v.  Lovvry,  10  Id.  272  ; 

*^  Ante,  i^  1.  ""te  1.  Dcsplain    v.    Crow,  14  Orey-.  404  ; 

"M^^ield  V.  Goldsljy,  28  Ala.  218;  Sheridan   v.  Salem,    Id.  ;!28.      "A 

]\Iatlieson    v.    llearin,   29   Id.  210;  single  decision  should  be  I'ollowed, 

15oon    V.    Bowers,    oO   Miss.    246;  unless    clearly     wrong.       And    a 

Tultle   V.    Giittin,    64   Iowa,    455;  series  of  decisions  not  just  in  them- 

llering  v.  Chambers,  103  Pa.    St.  selves  may  bind  where  one  would 

172,  17C>;  Scale  V.  Mitchell,  5  Cal.  noc:"     Bish.,    Wr.     L.,     §    104a, 

401;  Aicard  v.   Daly,  7    La.    An.  referring   to   Com'th   v.    Miller,  5 

G12;  Slate    v.    Thompson,    10   Id.  Dana  (Kv.)  320 ;   U.   v.  Chautrell, 

122;  Farmer  v.   Fletcher,    11    Id.  L.    R.    10   Q.    B.    587.    589,    590; 

142;  New  Orleans  V.  Poutz,  14  Id.  People  v.  Albertson,  55  N.  Y.   50, 

853;  Bane  V.  Wick,  (5  Ohio  St.  13;  04;    Van   Loon    v.    Lyon,  4   Daly 

Day  V.  Munson,  14  Id.  488.     And,  (N.  Y.)  149  ;  Kentucky  v.  (jiiio,  21 

see  Bish.,  Wr.   L.,  =;  104a,  citing,  How.  06. 


364] 


STARE    DECISIS 


500- 


be  changed  by  an  act  of  assembly  withont  unsettling  titles;" 
but,  upon  a  matter  not  involving  a  rule  of  property,  "  it  ie 
far  better,  when  this  court  connnits  a  blunder,  to  correct  it  in 
a  manly  way,  than  to  imitate  the  ostricb  by  hiding  our 
heads  in  the  sand."^'*  And  it  nnist  also  be  remembered  that 
such  expressions  as  amount  only  to  obiter  dicta,  do  not  con- 
trol, but  are  controlled  by  the  circumstances  of  the  cases  in 
which  they  occur  and  the  ]:>oints  really  in  controversy.*" 

§  304.  Federal  and  State  Courts.  Courts  of  different  States. — 
[A  similar  principle  is  probably  the  logical  foundation  of 
the  rule  in  the  federal  courts,  which  adopts,  upon  the  con- 
struction of  state  and  foreign  statutes,  the  decisions  of  the 
highest  tribunals  of  the  state  or  (iountrj^  where  they  are  in 
force,  except,  as  to  states,  in  so  far  as  they  confliet  with  the- 
constitution,  laws  and  treaties  of  the  United  States  '"  and  of 
the  rule  observed  by  the  courts  of  the  several  states,  by 
which  the  courts  of  one  state,  in  construing  the  statutes  of 
another,  follow  the  decisions  of  the  courts  of  the  latter," 
although  a  similar  statute  in  the  home  state  has  received  a 


*^  Paxson,  J.,  in  York's  App., 
17  W.  N.  C.  (Pa.)  ;]3  ;  1  Centr. 
Rep.  659,  060;  .S-  V.  110  Pa.  St.  69. 

^^  Miller  v.  Mariguy,  10  La.  An. 
338 

4^"See  Bell  v.  Morrison.  1  Pet. 
351  ;  DeWolf  v.  Rabaud,  Id.  476  ; 
Gardiner  v.  Collins,  2  Id.  58  ;  U. 
S.  V.  Morrison,  4  Id.  124;  Catli- 
cart  V.  Robinson,  5  Pet.  264  ; 
Happcuding  v.  Dutch  Cinnrli,  16 
Id.  455  ;  Elmendorf  v.  Taylor.  10 
Wheat.  152  ;  Porterfiekl  v.  Clark, 
'3  How.  T6  ;  Curran  v.  Arkansas. 
15  How.  304  ;  Peik  v.  Ry.  Co.,  94 
U.  S.  164;  Lamborn  v.  Dickinson 
Co.,  97  U.  S.  181;  Davie  v.  Briggs, 
Id.  628;  R.  R.  Companies  v. 
Gaines,  Id.  697;  Amy  v.  Dubuque, 
98  III.  470  ;  Amer.  Emigr.  Co.  v. 
Adams  Co.,  100  Id.  61  ;  Barrett  v. 
Holmes,  102  Id.  651  ;  jMoores  v. 
Bank,  104  Id.  625  :  Flash  v.  Conn, 
109  Id.  371  ;  Boyle  v.  Arlid^e, 
Hemps.  620  ;  The  Samuel  Strong, 
Newt).  Adm.  187;  liloodgood  v. 
Gracey,  31  Ala.  575  ;  Black  v. 
Canal  Co.,  22  X.  J.  L.  130  ;  Dra- 
per   V.    EmersoM,    22    Wis.    147  ; 


State  V.  Macon  Co.  Ct.,  41  Mo. 
453.  But  see,  for  exceptions  to- 
this  rule  :  Morgan  v.  Curtenius,  20 
How.  i  ;  Hooper  v.  Scheimer,  23 
Id.  235  ;  Butz  v.  JMuscatine,  8 
Wall.  575. 

■''*  See  Hoyt  v.  Thompson,  3 
Sandf.  (N.  Y.)  410;  Howe  v. 
Welch,  3  How.  Pr.  X.  S.  (N.  Y.) 
405  ;  Hale  v.  Lawrence,  23  N.  J. 
L.  590  ;  Sparrow  v.  Kohn,  (Pa.)  1 
Centr.  Rep.  352;  Davis  v.  Iiobcrt- 
Kon,  11  La.  An.  752  ;  McMerty  v. 
Morrison,  62  Mo.  140  ;  Johnston  v. 
Bank,  3  Slrobh.  Eq.  (S.  C-)  263  ; 
Carlton  v.  Felder,  0  Rich.  Eq. 
(S.  C.)  58.  So,  too,  as  to  the  con- 
struction of  a  charter  granted  by 
another  state  :  ^lerriniac  ]\Iin'g 
Co.  V.  Levy,  54  Pa.  !»t.  227  ; 
Aviltman's  App.,  98  Id.  505.  Ac- 
cordingly, the  construction  put 
by  the  L.  S.  Supreme  Court  uiion 
an  act  of  Congress  will  be  adopted 
by  state  courts  :  State  v.  .Vndriana. 
(Mo.)  10  West.  Rep.  35,  holding 
t5  4,  Act  1802,  concerning  infants 
of  naturalized  citizens,  both, 
prospective  and  retrospective. 


510 


LEGISLATIVE  CONSTRUCTION. 


[§  365 


different  construction  :"  tliis  rnle  boini^-,  however,  snbject  to 
tlie  qnalitications,  that  the  declsioti  of  the  Snpreine  Court  of 
the  United  States  upon  such  forei<^n  statute,  differing  from 
tlie  construction  put  upon  it  bj  the  courts  of  its  own  state,  and 
being  more  in  liarmony  with  the  jurisprudence  of  the  state 
wliosc  court  is  called  upon  to  construe  the  act,  will,  in  gener- 
al, be  ])refcrrcd  ;'"  and  that,  in  the  absence  of  any  proof  of 
the  construction  given  to  a  statute  of  another  state  by  its 
courts,  the  court  in  which  the  question  is  raised  will  construe 
it  as  it  would  a  statute  of  its  own  state." 

§  305.  Legislative  Declaration  ot  Construction.  Later  Cog- 
nate Acts.— [A  construction  put  uj)un  an  act  by  the  Legis- 
lature itself,  by  means  of  a  provision  embodied  in  the  same, 
that  it  shall  or  shall  not  be  construed  in  a  certain  designated 
manner,  is  binding  upon  the  courts,  although  the  latter, 
without  such  a  direction,  would  have  understood  the  lan- 
guage to  mean  something  different.'"  Thus,  where  an  act 
made  the  secretion,  sale,  incumbrance,  or  fraudulent  disposi- 
tion of  property,  not  off"ences  by  themselves,  but  declared 
them  to  be  "  a  fraudulent  transfer  of  property,"  the  court 
said  :  "  This  definition  is  furnished  by  the  act  itself,  and  the 
definition  is  as  much  a  part  of  the  act  as  any  other  portion. 
The  right  of  the  Legislature  to  prescribe  the  legal  definitions 
of   its    own    language    must    be    conceded.'"'     Moreover,  a 


«  Howe  V.  Welch,  17  Abb.  N. 
O.  (N.  Y.)397. 

5"  Davis  V.  Robertson,  11  La. 
An.  752  ;  especially  when  the  mat- 
ter is  reviewable  by  the  federal 
courts  :  Ibid. 

^^  See  Bond  v.  Appleton,  8  Mass. 
472;  Smith  v.  Robertson,  U  Ohio 
St.  GflO.  Sec  Anderson  v.  May,  10 
Ileisk.  (Tenn.)  84,  where,  an 
Arkansas  statute  being  the  same  as 
a  JS'ew  York  act,  tlic  court  in 
Tennessee  gave  the  former  the  con- 
struction given  by  the  New  York 
courts  to  the  latter.  See  post, 
§371. 

'■■^  Smith  V.  State,  28  Ind.  321. 
See,  also,  U.  S.  v.  Gilmore,  8  Wall. 
:VM;  Phila.,  etc.,  R.  R.  Co.  v. 
Catawissa  R.  R.  Co.,  53  Pa.  St.  20; 
Byrd  v.  Slate,  57  Miss.  243. 
See  Jones  v.  Surprise,  (N.    H.)  4 


New  Engl.  Rep.  292,  294,  where  it 
is  said:  "The  construction  of 
statutes  is  governed  by  legislative 
detiniiions  :"  that  of  indictments  by 
the  ordinary  use  of  language  ;"  cit. 
State  V.  Adams,  51  N.  H.  568; 
State  V.  Canterburv,  28  Id.  195. 

53  Herold  v.  State.  21  Neb.  50, 
52-53.  See  the  discussion  of 
interpretation  clauses  in  Will).,  pp. 
29(i-3()0,  where  it  is  remarked:  "It 
lias  been  said  lluit  u  very  strict 
construction  should  be  placed  upon 
a  section  whicii  declares  that  one 
thing  shall  mean  another  (cit. 
Allsop  V.  Dav,  7  U.  &  N.  at  p. 
463,  per  Pollock,  C.  B.),  that 
interpretation  clauses  embarrass 
rather  than  assi-st  the  courts  in  their 
decisions  (cit.  R.  v.  Cambridge- 
shire, Justices,  7  A.  &  E.  at  p.  491, 
per  Lord  Deuman,  C.  J.),  and  fre- 


§305] 


LEGISLATIVE    CONSTRUCTION. 


.11 


statute  declaratory  of  a  former  one  has  the  same  effect  upon 
the  construction  of  such  former  act,  in  the  absence  of  inter- 
vening rights,  as  if  tlie  dcchiratory  act  had  been  embodied 
in  the  original  act  at  the  time  of  its  passage. "  And]  when  the 
Legislature  puts  a  construction  on  an  Act,  a  subsequent  cog- 
nate enactment  in  the  same  terms  would,  prima  faciei  )e  undei-- 
stood  in  the  same  sense.  Thus,  as  tiie  125th  section  of  the 
Bankrupt  Act  of  6  Geo.  4,  which  made  void  securities  given 
by  a  bankrupt  to  creditors,  as  a  consideration  for  signing  the 
bankrupt's  certificate,  was  stated  in  the  preamble  of  the  5  & 
6  Will.  4,  c.  41,  to  have  had  the  effect  of  nuUcing  such 
securities  void   even  in  the  hands  of  innocent  holders  for 


quently  do  a  great  deal  of  bsu-m  bj^ 
giving  a  iionuutural  sense  to  words 
which  are  afterwards  used  in  a 
natural  sense  without  the  dis- 
tinction being  noticed"  (cit. 
Lindsey  v.  Cundy,  L.  U.  1  Q.  B. 
D.  at  p.  o58;  per  Blackburn,  J.). 
See  also,  the  observations  there 
referred  to,  of  Lord  St.  Leonards, 
L.  C. ,  in  Dean  of  Ely  v.  Bliss,  2 
DeG.  M.  &  G.  at  p.  4n;  Wood,  V. 
G.,  in  Midland  Hail.  Co.  v.  Amber- 
gate  Rail.  Co.,  10  Hare,  at  pp.  369, 
370;  Lusli,  J.,  in  K.  v.  Pearce,  L. 
R.  5  Q.  B.  D.  at  p.  389.  It  seems, 
accordingly,  to  be  the  rule  in 
England,  that  an  interpretation  is 
not  to  receive  a  construction  which 
would  give  it  the  effect  of  substitut- 
ing one  set  of  words  for  another 
or" rigidly  defining  the  meaning  of 
a  word  under  all  circumstances, 
but  merely  of  declarmg  what  things 
or  ]>ersons  may  be  compiehended 
within  a  particular  term  where  tlie 
circumstances  requiie  that  they 
s!)ould:  see  R.  v.  Cambridgeshire, 
Justices,  supra.  And  in  some 
cases  a  narrower,  in  olliers  a  more 
extended  meaning  has  been  given 
to  words  than  a  literal  compliance 
with  the  interpretation  clause 
would  seem  to  warrant:  see  as 
examples  of  the  first  class.  Grant 
V.  Ellis.  9  M.  &  \V.  113;  Dean  of 
Ely  v.  Bliss,  3  DeG.,  M.  &  G.  4o9; 
of  the  second,  Davis  v.  R.  R.  Co., 
2  L.  M.  &  P.  599.  Similarly  a 
declaration  that  a  certain  word, 
etc.,  "shall  include"  certain  things 
has  been  held  to  be  used  "  by  way 


of  extension,  and  not  as  giving  a 
definition  by  whicli  other  things 
are  to  be  excluded:"  Wilb.,  p.  299, 
cit.  R.  V.  Kershaw,  6  E.  &  B.  at  p. 
1007;  20  L.  J.  M.  C.  at  p.  23,  per 
Erie,  J.;  Exp.  Fertrusou,  L.  R.  6, 
Q.  B.  280,  291;  iiSi\  </.,  where  "it 
was  declared  tliat  '  petroleum ' 
should  include  all  such  rock  oil, 
etc.,  as  gave  off  an  inflammable 
vapor  at  a  temperature  of  less 
than  100  degrees,  Fahrenheit  .  . 
petroleum  iti-elf  was  held  to  be 
within  the  Act,  even  if  it  did  not 
give  off  an  inflammable  vapor 
below  the  specified  temperature," 
cit.  Jones  v.  Cook,  L.  R.  G  Q.  B. 
505.  Again:  "  It  does  not  follow 
that  because  the  expression  '  new 
street'  is  to  include  certain  other 
things,  Ave  are  to  say  it  does  not 
include  its  own  natural  meaning;" 
Blackburn,  J.,  in  Pound  v.  Plum- 
stead  Bd  of  Works,  L.  R.  7  Q.  B. 
at  p.  194.  See,  also,  Nutter  v. 
Accringtou  Local  Board,  L.  R.  4 
Q.  B.  D.  375;  Worsky  v.  R.  R. 
Co.,  16  Q.  B.  539.  Comp.  State 
V.  Dillon,  87  ilo.  487,  where, 
although  ^  3126  of  the  Mo. 
Rev.  Stat,  provides  that  the  word 
"  county  "  in  any  general  law  shall 
include  the  city  of  St.  ]>ouis,  it  was 
held  that  the  statutes  of  that  state 
had  not  provided  for  a  contest  in 
the  courts  of  the  right  to  the  oflice 
of  mavor  of  that  city. 

5-*  State  V.  Sold.'&  Sail.  Orph. 
Home,  37  Ohio  St.  275;  Comp. 
Hankins  v.  People,  106  111.  628. 
ante,  §  329,  note. 


512  LEGISLATIVE    CONSTRUCTIOX.  [§  366 

value,  and  was  modified  so  as  to  make  them  valid  in  such 
hand:-  ;  it  was  considered,  when  the  Act  of  Geo.  4  was 
repealed,  and  its  125th  section  was  re-enacted  in  its  original 
terms  in  tlic  r.aiiknipt  Act  of  1849,  that  the  renewed 
enactment  ought  to  i-eceive  the  construction  which  the  pre- 
amble of  the  5  &  G  Will.  4  had  put  on  the  earlier  one  («). 
The  expression  "  taxed  cart,"  in  a  recent  local  Act,  was  held 
to  mean  a  vehicle  which  had  been  defined  as  a  taxed  cart  by 
the  43  Geo.  3,  c.  161  (h).  [Where  an  act  had  authorized 
the  eidargement  of  a  market  house  by  a  municipal  corpora- 
tion, on  condition  that  the  stalls  in  tiie  western  moiety 
thereof  be  left  free  to  the  country  people  ;  and  another  sub- 
sequent act  recited  that  the  intentions  of  the  Legislature 
were  likely  to  be  frustrated  by  the  intrusion  of  persons  of  a 
different  description  from  those  intended  to  be  provided  for 
by  the  preceding  act,  and  declared  that  it  should  not  be 
lawful  for  any  person  whatever  to  sell  any  beef  in  the  west- 
ei-n  moiety  of  the  market  house  ;  and  a  still  later  act  autho- 
rized a  further  extension  of  the  market  house,  again  reserv- 
ing the  western  moiety  for  country  j)eople,  and  allowing 
them  to  sell  their  produce  there,  it  was  held,  that,  as  beef 
had  been  before  excluded  by  the  Legislature,  as  without  the- 
legislative  intention,  the  sale  of  it  was  not  included  in  the 
power,  under  the  later  act,  to  market  the  produce  of  farms, 
in  the  western  moiety,  altliough  in  tlie  broadest  sense,  beef 
might  be  regarded  as  a  product  thereof."  I>ut,  of  course,  if 
the  later  statute  shows  a  distinct  intention  inconsistent  with 
a  previously  declared  rule  of  construction,  the  latter  becomes 
inapplicable.'"  "  The  intention  of  the  Legislature,  when 
discovered,  must  prevail,  any  rule  of  construction  declared 
by  previous' acts  to  the  contrary  notwithstanding.''"] 

§  'BQQ.  Earlier  Cognate  Acts.— Where  it  is  gathered  from  a 
later  Act,  that  the  Legislature  attached  a  certain  meaning  to 
an  earlier  cognate  one,  this  would   be  taken  as  a   legislative 

(a)  Goldsmid  v.    Hampton,  5  C.  "  Mayor  of  Philad'a  v.   D;tvis,  G 

B.  K  S.  94,  27  L.  .T.  286.  Watts  &  S.  (Pa.)  2()!). 

{b)  Williams  v.  Lear,  L.  R.  7  Q.  •'•'  IJrown  v.  Barry,  '6  Dall.  JJOo. 

B.  285,  ovorruliug  Puniy  v.  Smith,  '-''  Per  Ellswortli,  C.  J.,  Ibid.,  at. 

E.  &  E.  511.     See  Ward  v.    Beck,  p.  367. 
6\  C.  B.  N.  S.  668,  32  L.  J.  113. 


g  307]  LEGISLATIVE    CONSTRUCTION.  513 

declaration  of  its  meaning  there  («).  [To  this  principle 
would  seem  most  properly  referable  the  decision  already 
mentioned,'*  that,  where  a  statnte  declared  that  the  burden 
of  showino;  irregularities  in  sales  made  under  a  certain  enact- 
ment should  be  upon  the  party  assailing  their  validity,  the 
same  jirinciple  was  held  to  apply  to  sales  made  under  an. 
earlier  enactment  of  similar  purport/" 

§   3G7.   Use  of  Same  Phraseology  in  Later  Acts  in  Pari  Materia. 

— [The  imjiortance,  in  tlie  construction  of  a  statute,  of  a 
comparison  of  the  same  with  earlier  statutes  in  pari  materia, 
lias  already  been  pointed  out/"  A  recourse  to  such  statutes, 
however,  necessarily  involves  a  recourse  to  the  construction 
placed  upon  them  by  the  courts  ;  for  such  decisions  become 
virtually  a  part  of  the  law,"  and,  aside  from  this  consider- 
ation, as  the  comparison  of  former  acts  in  pari  materia  pro- 
ceeds upon,  and  is  justified  and  demanded  by,  the  ]n"inciple 
that  the  Legislature  cannot  be  presumed  ignorant  of  previous 
legislation,"^  so  a  recourse  to  the  construction  put  by  the 
courts  upon  words  used  in  such  acts,  is  based  upon  the 
I'casonable  assumption,  that,  where  the  Legislature  has 
reproduced  language  upon  which  a  case  has  been  decided, 
it  must  have  known  the  interpretation  put  upon  them  in  that 
decision.*'  It  is  but  a  corollary  to  this  assumption,  that,  where 
cases  have  been  decided  on  particular  forms  of  words  in  courts 
of  justice,  and  those  forms  of  words  are  then  used  in  legisla- 
tive enactments,  the  Legislature,  in  the  absence  of  anything 
in  the  statutes  showing  that  it  did  not  mean  to  use  them  in  the 
sense  attributed  to  them  by  such  judicial  construction,  must 
be  presumed  to  have  used  them  in  that  sense.*^]     It  may  be 

{<!)  R.    V.    Smith,  4  T.  R.    419  ;  «3  ci.^.k  v.  Walloiul,  53  L.  J.  Q. 

Morris  v.  ]\relliii,  (i  B.   &  C.    454.  B.    D.     322,     per     Matliew,    J.  ; 

[And    ste  Slate  v.  Oliio    Sold.  &  O'Byrncs   v.    Slate,    51    Ala.    25  ; 

Sail.    Orph.    Home,    37    Ohio    St.  Cola  v.  Ross,  (56  Mc.  161. 

275.]  «*  Barlow  v.    Teal,  L.   R.    15  Q. 

=8  Ante,  §  327.  B.  D.  403,  ;)«•  Coleridge,  C.  J.    See 

5^    Chandler    v.      Noi-throp,    24  to  same  elfcct :    The   Ahbotsford,. 

Barb.    (N.    Y.)    129.       See,    al.so,  98  U.  S.  440  ;   Com'th  v.IIartnett. 

ante,  §  354.  3  Gray  ( Mass.)  450;  Exp.  Banks,  28 

^"  Ante,  §1  43  et  seq.  Ala.  28  ;   Bloodgood  v.  Grasoy,  31 

8'   See  ante,  g§   1,   note  1  ;  358,  Id.  575;  Tuxbmv's  Ap])..  67"  Me. 

363.  267;   AVhitecrab  "v.   Rood,    20  Vi. 

"^  Howard  Ass'n's  App.,  70  Pa.  49  ;  Friuk  v.  Pocd,  40  N.  II.  125; 

Si.  344,  346  ;  ante,  g  182.  McKee   v.    McKee,    17  Md..    353  r. 

33 


514  LEaiSLATIVE     COXSTRCCTION.  [§  ''>nT 

taken  for  gninted  that  the  Le<,'ishiturc  is  acquainted  with  any 
construction   wliich   has   been  put   on  a  statute  by  judicial 
authority — [''not  only  the  general  j)rin('iples  of  law,  but  the 
constru(;ti()n    which   tiie   courts    have    put    upon   particular 
s^itutes.'""']     Therefore,  when  the  words  of  an  old  statute  are 
cMthcr  transci-il)ed  into,  or  by  reference  made  part  of  a  new 
statute,  this  is  understood  to  be  done  with  the  object  of  adopt- 
ing any  legal  interpretation  which  has  been  put  on  them  by  the 
Courts  {(i).     So,  the  same  words  aj)j)earing  in  a  subsequent 
Act  in  pari    materia,  the  presumption  arises  that  they  are 
used  in  the  meaning  wliich  had  been  judicially  put  on  them, 
and  unless  there  be  something  to  rel)ut  that  presumption, 
the  new  statute  is  to  be  construed  as  the  old  one  was  {b). 
One  reason,  for  instance,  for  holding  that  the  534:th  sect,  of 
the  Merchant  Shipping  Act  of  1854,  which  limits  the  liabilty 
of  ship-owners,  did  not  extend  to  foreign  ships,  was  that  the 
enactment  was  taken   from   53  Geo.  3,  c.  159,  which  had 
received  that  construction  judicially  (c).     On  similar  grounds, 
Order  31    of  the   Judicatuie  Act,  1875,  r.  11.  received  the 
same  construction  as  had  been  given  to  the  earlier  enactment 
from  which  it  was  copied  (d).     [So,  the  expression,  in  the 
insolvent   acts   of   Massachusetts,    "  founded    on   a  contract 
made,"  in  defining  the  powers  of  the  court  over  the  debt,  is 
said  to  be  always  construed  as  referring  to  the  contract  upon 
which  the  debt,  for  the  time  being,  rests;  whilst  the  phrase 
"  debt  contracted  "  refers  to  the  origin  of  the  liability."     And 
the  words  "  every  dollar  of  the  value  thereof,"  having,  as 
applied  to  the  assessment,  for  purjjoses  of  taxation,  of  corpor- 
ation stock,  etc.,  under  the  various  revenue  laws  of  the  state  of 
Pennsylvania,  judicially  acquired  a  definite  and  well-settled 

County  Scat  of  Linn  Co.,  15  K:ui.  of    Bylcs.    J.,    in    St.    Losky    v. 

500  ;   and   cases  in  preceding  note  Green,  0  C.  B.  N.  S.  370,  oO  L.  J. 

and  infra.  ~1  ;   iiiid    see    ex.    gr.    Sturgis  v. 

'^^  Will)..  i>.  K).  Darreli,  4  II.    &  N.   622,  28  L.  J. 

(a)  Per' J  turn's.,  L.   .J.,  in  Dale's  30(5,  sup.  ^326. 

Case,  0  Q.    B.  D.  453.  {c)  Per  Turner,  L.  J.,  in  Cope  v. 

(i)  Mansell  v.  K.,  8  E.   &  B.  73.  Doherty,  4  K.  &  J.  27  L.  J.  Ch. 

per    Blaekbnrn.   J.,    in    Jones    v.  610. 

Mersey  Dock  ('.)..  11  II.  L.  480;  ((0  Bustros  v.  White,  1  Q.  Si.  D. 

3:.\p.  TLorn-e.  3  Ch.  D.   458,  E.\p.  423. 

Atlwater,   5  Cli.    D.    30,    and    per  ««  Wyman  v.  Fubens,  111   Mass. 

•lanics.  li.  .1.,  in  K.xp.  Campbell,  5  77,  82. 
V\i.  I).  TOO.      (.'onip.    the  remarks 


^   3G8]  LEGISLATIVE     CONSTRUCTION.  515 

meaning,  as  referring  to  the  actual,  not  the  mere  nominal, 
value  thereof,  was  so  construed  when  occurring  in  the 
general  revenue  law  of  1881." 

§   368.   Adoption  of  Previous  Construction  by  Re-enactment. — 

[Where,  indeed,  the  two  acts  in  ]niri  materia  are  almost 
precisely  alike,  in  the  provisions  under  construction,  it  is  said 
that  the  decisions  upon  the  earlier  will  be  considered  as 
authority  in  the  interpretation  of  the  later  act/*  In  other 
words,  the  re-enactment  of  a  statute  which  has  received  a 
judicial  construction,  in  the  same,  or  substantially  the  same, 
terms,  amounts  to  a  legislative  adoption  of  such  construction, 
whether  such  re-enactment  is  by  way  of  an  isolated  and  in- 
dependent statute,  of  the  incorporation  of  several  former 
statutes  into  one,  or  of  their  incorporation  in  a  code  or  revis- 
ion of  statutes.^'  That  is  to  say,  it  is  a  legislative  adoption 
of  its  known  construction  ;  so  that  that  judicial  construction 
which  has  been  reported  is  to  be  deemed  to  have  been 
adopted,  notwithstanding  there  may  have  been  other  judicial 
expositions,  differing  from  the  same,  but  remaining  nme- 
ported  at  the  date  of  the  new  enactment.'" 

SI  Com'th  V.  R.  R.  Co.,  104  Pa.  18  Nev.  253  ;  McKenzie  v.  State, 
St.  89.  And  where  the  efTect  of  a  11  Ark.  594.  An-l  see  State  v. 
particular  form  of  repealing  clause  Stockley,  (O.)  11  West.  Rep.  259, 
liacl  been  several  times  adjudicated  where,  upon  the  principle  that,  in  a 
to  be  a  continuation  of  the  provis-  revision  of  all  the  general  statutes  of 
ions  of  the  older  statutes,  it  was  a  state,  a  particular  statute  will  re- 
said  that  the  use  of  it  again  by  the  ceive  the  same  construction  as  be- 
Legislature  was  to  be  treated  "as  an  fore  the  revision,  it  was  held  that  a 
adoption  of  that  effect  ;  llie  decis-  provision  of  the  Rev.  Stat,  that  di- 
ions  of  the  Supreme  Court  being  rectors  "  shall  be  chosen  by  ballot 
matters  of  record  and  publication  :  by  the  stockholders  who  attend  for 
State  v.  Brewer,  22  La.  An.  273.  that   purpose  .   .  each  share  shall 

«8  Evans  v.  Ross,    107  Pa.  St.  entitle  the  owner  to  as  many  votes 

231.  as  there  are  directors  to  be  elected, 

«3  See  Duramus  v.  Harrison,  26  and  a  i)lurality  of  votes  shall  be 
Ala.  326  ;  Anthony  v.  State,  29  necessary  for  a  choice,"  did  not 
Id.  27  ;  Bank  of  ]Mobile  v.  give  the  right  of  cumulative  vot- 
Meagher,  33  Id.  622  ;  O'Byi'nes  v.  ing.  That',  however,  if  the  Ian- 
State,  51  Id.  25  ;  Exp.  M'atthew^s.  gnage  of  a  section  of  a  revision  is 
52  Id.  51 ;  Woolsey  V.  Cade,  54  Id.  unambiguous,  the  court  will  not, 
378  ;  Be  Murphy,  23  N.  J.  L.  180  ;  in  determining  its  meaning.  con- 
Knight  V.  Ocean  Co.,  (K  J.)  10  sider  the  language  of  the  statutes 
Ceutr.  Rep.  653.  La  Selle  v.  of  which  it  is  a  revision,  see  Bent 
Whitfield,  12  La.  An.  81  :  Jlyrick  v.  Ilubbardston,  138  Mass.  99. 
V.  Hasey,  27  Me.  9  ;  Cota  v.  AUtcr,  if  ambiguous  :  Pratt  v. 
Ross,  66  Id.  161;  Tuxbury's  Comm'rs,  139  IdT  559. 
App.,  67  Id.  267  ;  State  v.  '"^  Hakes  v.  Peck,  30  How.  Pr. 
Swope,  7  Ind.  91  ;  Gould  v.  Wise,  (N.  Y.)  104. 


LH't  LEGISLATIVE  CONSTRUCTION.  [§§  309,   370- 

§  3'J9.  Same  Phraseology  in  Analogous  Acts. — [  lillt  tllO  rulo  io 
not  cotifinod  to  statutes  strictly  in  p:iri  materia.  Where 
terms  and  modes  of  e.xpression  are  employed  in  a  new 
statute,  which,  at  the  time  of  its  enactment,  had  acquired, 
by  judicial  cons-truction,  a  definite  meaning  and  application 
in  a  previous  statute  on  the  same  subject,  or  on  one  analogous 
to  it,  they  are  generally  supposed  to  be  used  in  the  same 
sense,  and  in  the  const- ruction  of  the  later  act,  regard  should 
be  liad  to  the  known  and  established  inter]M-etation  of  such 
terms  and  modes  of  expression  in  the  former."  Thus,  an  act 
passed  in  1803  provided  that  no  courts  could  be  appointed  to 
be  holden  before  a  justice  for  the  trial  of  civil  causes  at  an 
earlier  honr  than  9  a.m.  nor  at  a  later  than  6  p.m.,  nor  any 
default  be  taken  until  two  hours  after  '*  the  time  set  tor 
trial."  It  was  held  that  this  phrase  n)eant  the  time  set  for 
trial  in  the  original  process,  and  had  no  I'eference  to  any 
time  set  or  appointed  by  adjournment.''^  In  1832  an  act  was 
passed,  that,  when  any  civil  process  should  be  served, 
returnable  before  a  justice,  and,  "  at  the  time  appointed  for 
the  trial,"  the  justice  should  be  unable  to  attend,  another 
justice  might  continue  the  suit.  It  was  held  that  the  same 
construction  must  be  given  to  this  substantial  repetition  of 
the  phrase  contained  and  construed  in  the  earlier  act." 
And,  of  course,  when  subsequently  the  Revised  Statutes 
])rovided,  that,  "whenever  "  at  the  time  and  place  appointed 
for  the  trial  "  of  any  civil  suit  before  a  justice,  the  latter 
should  be  unable  to  attend,  another  justice  might  grant  a 
continuance,  the  same  interpretation  was  put  upon  this 
expression  ;'*  and  no  efficacy  to  change  this  interpretation 
was  allowed  to  a  restriction  in  both  of  the  latter  acts 
forbidding  more  than^one  contimiance,  except  by  the  justice 
before  whom  the  case  was  to  be  tried." 

§  370.  Amendments  using  Same  Terms. — [It  is  scarcely  nec- 
essary to  ren)ai'k,  that,  where  the  same  language,  which  has 
received  a  certain  judicial  construction  in  an  act,  is  used  in 
an  act  amendatory  of  the  same,  it  is  to  be  j>resumcd  to  have 

"    Whitcomb    v.  Rood,    20   Vt.  "  Plivlps  v.  Wood,  9  Vt.  399. 

49.  '■»  Whitcoiiib  v.  IIockI,  supra.. 

"  Steele  v.  Bates,  2  Vt.  320.  «  Ibid. 


^371] 


LEGISLATIVE     CONJ^'IKUCTIOX. 


51T 


been  used  there  iii  the  siune  sense,  ;ind  intended  to  be  subject 
to  the  siune  construction."  Amendments  are  so  much 
regarded  as  but  parts  of  the  enactment  alfected  by 
them,"  that  it  would  seem  that  the  rule  that  a  word,  etc., 
repeatedly  used  in  the  same  statute  is,  in  the  absence  of  a 
manifest  intent  to  the  contrary,  to  receive  the  same  meaning 
throughout"  must  apply  to  them." 

§  371.  Adoption  of  Construction  by  Transcribing  Foreign  Act. — 
[One  of  the  most  important  bearings,  possibly  extensions,  of 
the  rule  in  question,  is  its  application  to  statutes  transcribed 
from  the  statute  book  of  another  state  or  nation.  Thus  it 
has  been  held,  that,  where  Congress  or  the  Legislature  of  a 
State  enacts  a  statute  which  is  a  transcript  of  an  English  act 
that  has  received  a  known  and  settled  construction  by  the 
courts  of  that  country,  that  construction,  at  the  time  of  such 
enactment,  is  to  be  deemed  as  accompanying  and  forming 
an  integral  party  of  the  same.^°  And  the  same  rule  applies  as 
to  statutes  copied  from  the  statute  books  of  other  states.*' 


"  Gonder  v.  Estabrook,  33  Pa. 
St.  374,  375.  And  see  Robbins  v. 
R.  R.  Co.,  33  Cal.  472. 

"  See  ante,  §  394. 

^8  Pitte  V.  Shipley,  46  Cal.  154  ; 
ante,  §  41.     Comp.  post,  §  387. 

''^  Compare,  however.  State  v. 
Co.  Comin'rs.  78  Me.  100  ;  where 
the  phrase  "  Regular  sessions,"  in 
JRev.  Slat,  c,  78,  ji  6,  was  held  not 
to  be  identical  in  meaning  with 
the  same  words  in  Rev.  Stat.  c.  18. 
§  5,  the  words  "  terms  of  record  " 
in  the  later  act  bearing  that  mean- 
ing. 

^"^  Pennock  v.  Dialogue,  2  Pet.  1 ; 
Cathcart  v.  Robinson,  5  Id.  265; 
I\IciDonald  v.  Hovey,  110  U.  S. 
619;  Kirkpatrick  v.  Gibson,  3 
Brock.  ]\Iursh.  388;  TheDevoiih-hire, 
8  Sawyer,  209;  Tyler  v.  Tyler,  19 
111.  lol;  Kennedy  v.  Kennedy,  3 
Ala.  571;  IMarqiieze  v.  Caldwell, 
48  Miss.  33;  State  v.  Robey,  8  Nev. 
312.  See  Tavlor  v.  Thompson,  5 
Pet.  858;  Com'th  v.  Hartnett,  3 
'Gray  (Mass.)  450;  Bloodgood  v. 
Grascy,  31  Ala.  575. 

*'  Com'th  V.  Hartnett,  supra; 
Pratt  v.  Amcr.  Bell  Tel.  Co..  141 
•Mass.  335;  Ctimpbeil  v.  Quiulin,  4 


111.  288  ;  Rigg  v.  Wilton,  13  Id.  15; 
Fisher  v.  Deering,  60  Id.  114; 
Freese  v.  Tripp,  70"^!.  496  ;  Pang- 
born  V.  Westlake,  36  Iowa,  356 ; 
Bloodgood  V.  Grasej'.  31  Ala.  575; 
Drennan  v.  People,  10  Mich.  169; 
Harrison  v.  Sager,  27  Id.  476 ; 
Grenier  v.  Klein,  28  Id.  12,  22; 
Daniels  v.  Clegg,  Id.  32;  Draper  v. 
Emerson,  22  Wis.  147;  Poertner  v. 
Riissel,  33  Id.  193;  Westcott  v. 
Miller,  43  Id.  454;ltilkelly  v.  State, 
43  Id.  604;  State  v.  Macon  Co.,  41 
Mo.  453;  Clark  v.  R.  R.  Co.,  44 
Ind.  348;  Fall  v.  Hazelrigg,  45  Id. 
576;  Trabantv.  Ruinm(!il,  14  Oreg. 
17;  Suoddy  v.  Cage,  5  Tex.  106; 
Lindley  v.  Davis,  6  jMont.  453; 
(where  it  is  also  decided  that  the 
adoption  of  a  statute  which  has 
been  amended,  in  the  form  in 
which  it  stood  before  the  amend- 
ments were  made,  adopts  the 
interpretation  as  made  prior  to  the 
amendments).  Compare  llobbs  v. 
R.  R.  Co.,  9  Heisk.  (Teun.)  873; 
Anderson  v.  May,  10  Id.  84  (ante. 
§  364.  note);  lie  Swearincer.  5 
Sawyer,  53;  Hahn  v.  U.  S..  14  Qt. 
of  CI.  305.  In  Freese  v.  Tripp, 
supra,  in  applying  the  rule  stated  in 


5  IS  LEGISLATIVE     CONPTKUCTION.  [§  371 

Indeed,  it  is  laid  down,  that,  whetlicr  passed  by  the  Legis- 
hitnrc  of  the  same  state  or  country,  or  hy  that  of  another, 
the  terms  of  a  statute  which  have  acquired  a  settled  meaning 
bv  judicial  construction,  are,  when  used  in  a  later  one,  to  be 
understood  in  the  sense  so    attributed  to    them.*"     But,  as 
applied  to    transcribed    statutes,    this    rule    is    undoubtedly 
subject  to  important  qualifications.     Whilst  admitting  that 
the  construction  put  upon  such  statutes  by  the  courts  of  the 
state  from  which  they  are  borrowed  is  entitled  to  respectful 
consideration,  and  that  only  strong  reasons  will  warrant    a 
departure  from  it,  its  binding  force  has  been  wholly  denied, 
and  it  has  been  asserted  that  a  statute  of  the  kind  in  question 
stands  upon    the  same  footing,  and  is  subject  to  the  same 
rules  of  interpretation  as  any  other  legislative  enactment.'' 
And  it  is  manifest  that  the  imported  construction  should 
prevail  only  in  so  far  as  it  is  in  harmony  with  the  spirit  and 
policy  of  the  general  legislation  of    the    home    state,"  and 
should  not,  if  the  language  of  the  act  is  fairly  susceptible  of 
another  interpretation,  be  permitted  to  antagonize  other  laws 
in  force  in  the  latter,  or  to  conflict  with  its  settled  practice.*' 
Nor,  where  the  constitutional  requirements  of  the  adopting 
state  are  different  from  those  of  the  originating  one,  would 
a  construction  by  the  courts  of  the  latter  conformable  witb 
its  constitution,  bind  the  courts  of  the  former  not  similarly 
constrained.'"     And,  of  course,  a  construction  by  the  courts^ 
of  the  originating  state,  declaring  an  act  unconstitutional,  as 
beinf  repugnant  to  the  federal  constitution,  is  not  one  which 
nnist    be    deemed    adopted    with     the    statute,    where    the 
transcribed  statute,  though  largely  a  copy  of  the  foreign  one, 
yet  contains  such    differentiating    elements    as  to  permit  a 

the  text  toastalntecivint^an  aclion  must    prove    actual      injury    (cit. 

for  dainac:cs  to  the  wife  lor  selliii.i,-  Sclircider  v.  Hosier,  Ih.  !iS.) 

liquor  to  llie  husband,  it  was  lield  ^"-  Com'th    v.     Ilarlnelt,    supra; 

that   menial  an^uisli,  disgrace,  or  Blood^ood  v.  Grase.y.  ;>1  Ala.  575. 

loss  f)t'  society  was  not   an    injuiy  "•*  Ingraham  v.    Regan,  23  Miss, 

within  the  meaning  of  the  act,  and  21;}. 

not  a  proper  subject  of  considera-  ^^  Gage  v.  Smith,  70  Id.   219,  cit 

lion  for  llie  jury  ;   but  only  injury  Riug    v.    Wilton.    l:i   111.   15,   and 

in   person,    i)roperty   or   means  of  Slreeter  v.    People,    G!)    Id.    598; 

support   (cit.    Mulford  v.  Clewell.  Jamison  v.   Burton,  4;5  Iowa,  282. 

21  Ohio  St.  191)  ;  and  that  plaintiff  "  CoW  v.  People,  84  111.  216. 

***  lie  Swearinger,  5  Sawyer,  52. 


§  372]  LEGISLATIVE     CONSTRUCTION.  519 

construction  which  will  uphold  it  as  constitutional.*'  It  is 
scarcely  needful  to  add  that  subsequent  fluctuations  in  the 
construction  of  a  transcribed  statute,  by  the  courts  of  the 
originating  state  or  country,  though  they  may  be  entitled  to 
great  respect,  are  not  within  the  meaning  of  the  rule  under 
discussion. *"*] 

§  372.  Effect  of  Legislative  Intimation  of  Erroneous  Opinion. — 
But  an  Act  of  Parliament  does  not  alter  the  law  by  merely 
betraying  an  erroneous  opinion  of  it  (a),  [so  as  to  make  it 
accord  with  the  misconception.]  For  instance,  the  7  Jac. 
1,  c.  12,  which  enacted  that  shop  books  should  not  be  evi- 
dence above  a  year  before  action,  did  not  make  them 
evidence  within  the  year;  though  the  enactment  was  obvi- 
ously passed  under  the  impression,  not  improbably  confirmed 
by  the  practice  of  the  Courts  in  those  days,  that  they  were 
admissible  in  evidence  (h).  [Nor  does  a  declaration  in  a 
statute  that  husband  and  wife  shall  not  be  required  to  testify 
against  each  other  make  them  competent  to  do  so  volun- 
tarily.*'^] So,  an  Act  of  Ed.  6,  continuing  till  the  end  of 
next  session  an  Act  of  Hen.  8,  M'hich  was  not  limited  in 
duration,  was  considered  to  be  idle  in  that  respect,  and  not 
to  abrogate  it  (e).  A  passage  in  an  Act  which  showed  that 
the  Legislature  assumed  that  a  certain  kind  of  beer  might 
be  lawfully  sold  without  a  license,  could  not  be  treated  as  an 
enactment  that  such  beer  might  be  so  sold,  when  the  law 
imposed  a  penalty  on  every  unlicensed  person  who  sold  any 
beer  (d).  Tlie  41  &  42  Yict.  c.  77,  s.  7,  which  provided 
that  the  Public  Health  Act  of  1875,  s.  149,  which  vests  the 
"streets"  of  a  town  in  its  local  authoritj',  should  not  be 
construed  to  pass'  minerals  to  the  local  authority,  was  con- 
sidered not  to  afford  the  inference  that  the  soil  and  freehold 
of  the  streets  vested  in  all  other  respects  (e).  Earlier  bank- 
s' See  Haskell  v.  Jones,  86  Pa.  T.  R.  358. 
St.  173.  ^»  Byrd  v.    State,  57  ]\Iiss.   243. 

88  Sec    Cathcart  v.   Robinson,  5         (c)  The  Prices   of    Wine,    Hob. 
Pet.  264.  215.     And  see  Allen  v.  Flicker,  10 

(a)  See  ex.   gr.  per  Asluirst,  J.,      A.  &  E.  640,  ante,  g  71- 
in  Dore  v.  Gnij%  2  T.  R.  358;  Exp.  (d)  Read   v.   Storev,  6  H.  &  N. 

Lloyd,  1  Sim.  N.  S.  248,  jyer  Shad-     423,  30  L.  J.  M.  C.  110;  see  24  & 
well.  V.  C.  25  Vict.  c.  21,  s.  3. 

(6)  Pitman  v.    Maddox,  2  Salk.  {e)  Coverdale  v.   Chorlton,  4  Q. 

690.     See,  also,  Dore  v.    Gray,  2      B.    D.    116;  Rolls  v.    St.  George. 


520 


LKGISLAirVK  CONsTJaXTlOX. 


[§372 


rupt  Acts,  ill  making-  traders  liaviiig'  the  |)rivilei;e  of  l*arlia- 
inuiit  liable  to  be  made  baid<ni|)ts,  bad  expressly  provided 
tbat  tbey  sliouid  be  exempted  from  arrest ;  but  wlieii  tbe 
Bankrupt  Act  of  18GI  enacted  tbut  all  debtors  sliould  be 
liable  to  baid;ru[)tc-y,  witbout  makin<;-  any  .similar  provision 
on  bebalf  of  petirs  and  members  of  Pai-1  lament,  it  was  beld 
tbat  tbey  wei-e  nevertbeless  protected  by  tbe  privilege  (ti). 
[So,  tbe  fact  tbat  a  statute  is  referred  to  in  a  subsequent  one, 
tbe  reference  not  being  intended  as  a  re-enactment,  will  not 
give  it  vitality.*".  Even  wbere  tbe  later  act  attempts  to 
amend  an  earlier  one,  previously  repealed  by  implication, 
tbe  copying-  of  parts  of  tbe  earlier  act  into  tbe  amendment, 
•was  lield  not  to  re-enact  it."'  Conversely,  a  recital  in  an 
act  tbat  a  former  statute  was  repealed  or  superseded  by 
anotber,  is  not  conclusive  upon  tbe  question  of  its  repeal, 
that  being  a  ludicial.  not  a  legislative  one."^  And  wbere  an 
act,  declared  to  take  effect  at  a  future  date,  abolisbed  tbt; 
ofBce  of  city  marsball  of  Detroit,  and  anotber  act.  })assed  sub- 
sequently to  it,  but  before  tbe  date  fixed  for  its  going  into 
operation,  reduced  tbe  number  of  jurors  to  be  summoned  by 
tbe  marsball  in  certain  proceedings,  it  was  bold  that  tbe 
latter  enactment  did  not  operate  to  repeal  the  former  so  as 
to  continue  tbe  office  of  city  nuirshall."^  In  some  states  tbe 
principle  has  been  made  a  statutory  rule  of  construction, 
tbat  the  repeal  of  an  act  is  not  to  be  deemed  a  declaration 
tbat  any  act  or  part  of  an  act  expressly  or  impliedly  so 
repealed  was  previously  in  force. "^] 

Southwark,  14Ch.  D.  785.  49  L.  J.  1867:  People  v.  Miner,  46  111.  367. 

(591.    See  Bruntonv.  Griffiths,  1  C.  »-   U.    S    v.    Ciaflin,   97    U.     S. 

P.  D.  355.  per  Bictt.  L.  J.  546.      And   see  Tnisk  v.  Green,  9 

(a)  Newcuslle  v.  Morris,  L.  H.  4  jMicli.  358.     But  see  Peuiia.  Co.   v. 


H.  L.  661 

9»  South  Ottawa  v.  Perkins,  94 
U.  S.  200. 

»'  Stinscl  V.  Nevel.  9  Greg.  6-2. 
Bui,  where  an  aet  p:'.ssed  in  1839. 
contained  certain  provisions  on  a 
subject,  and  another  was  jiasscd 
upon  the  same  subject  in  lS.-)7, 
and  linall}',  in  1867,  still  another 
act  made  other  provisions  "  in 
addition  to "  those  contained  in 
the  act  of  1839,  it  was  held,  that, 
if  the  latter  was  repealed  by  the  act 
of  1857.  it  was  revived  bv  that    of 


l)unlap,(Ind.)  11  West  Rep.  87,  that 
the  Legislature  may  declare  that 
former  acts  shall  not  be  deemed 
repealed  by  later  ones,  and  that 
such  a  declaration  will  be  carried 
into  elTect  whenever  it  can  be 
(lone  without  destroying  tJH!  later 
act.  And  see  People  v.  Jaehne, 
IU3  N.   Y.  182,  ante,  t;  193. 

^'■''  People  V.  Mahanev,  13  3licii. 
481. 

^'  Stimson,  Amer.  Stat.  Law,  j). 
143,  ^  1043;  i.  c,  in  New  York, 
Wi.sconsin  and  Cidifornia. 


§§  ^i^'^?  374]  LEGISLATIVE    CONSTKUCTI(»N'.  521 

§  373,  In  the  case  of  the  Fraiicuiiiu  [a),  tlio  lUiijurity  of 
the  judges  held  that  the  Criminal  Courts  of  this  countiy  had 
no  jurisdiction  to  try  a  foreigner  for  manslaughter  committed 
while  he  was  sailing  in  a  foreign  siiip  within  three  miles 
from  the  coast  of  England  ;  although  several  Acts  of  Parlia- 
ment had  assumed  jurisdiction,  for  the  purposes  of  naviga- 
tion, revenue,  and  fislieries  (h),  over  foreigners  for  acts  done 
within  the  three  mile  zone  ;  and  one  Statute  {c)  had  declared 
that  the  minerals  below  low-water  mark  (in  Cornwall) 
belonged  to  the  Crown.  [So,  where  an  act  has  expressly  ex- 
cepted certain  cases  from  the  jurisdiction  of  a  court,  the 
latter  is  not  extended  to  such  cases  by  expressions  in  a  sub- 
sequent enactment  indicating  a  belief  on  the  part  of  the 
Legislature  that  the  jurisdiction  of  the  court  embraces 
thein.'^  And  it  is  said  that  the  jurisdiction  of  a  magistrate 
•can  never  be  inferred  from  the  mere  fact  that  a  statute,  by 
its  phraseology,  implies  that  his  jurisdiction  extends  to  a 
j)articular  case,"^ 

§  374.  Efifect  of  Express  Enactment  of  Existing  Rules. — [It  is 
an  obvious  inference  from  what  has  gone  before,  that  enact- 
ments of  any  specific  provision  on  a  particular  subject  are  not 
to  be  regarded  as  conclusive  declarations  that  the  law  was 
different  before."  Thus,  a  statutory  provision  empowering 
towns  at  their  annual  meetings  to  grant  taxes  on  the  assess- 
ment list  which  should  next  thereafter  be  completed  by  the 
assessors,  was  held  to  be  no  proof  that  they  had  not  that 
power  before.**  So,  where  an  act  permitting  the  extension 
of  a  market  house  provided  that  one  half  of  the  same  should 
be  let  to  country  people  and  the  other  half  to  butchers, 
victuallers,  etc.,  "  any  law,  usage  or  custom  to  the  contrary 
notwithstanding,"  the  former  act  which  had  also  required 
the  setting  aside  of  tlie  one-half  for  country  people,  and  had 


(a)  R.  V.  Keyn,  2  Ex.  D.  163.  capture  within  it  is  I):ul. 

(b)  59  Geo.  3,  c.  38,  s.  2;  17  &  18  "^  Ludiuscton  v.  U.  S.,  15  Ct.  of 
Vict.  c.  104,  s.  527  :   33  &  34  Vict.  CI.  453. 

c.  90.  s.  52  ;  39  &  40  Vict.  c.  36,  ss.  »«   Hersom's   Case,   39   Me.  476. 

179,  235  (Hoverino;.)  See  State  v.   Miller,  23  Wis.  fi34, 

(c)  21   &  22  Vi'ct.   c.    109.     The  post,  t^  377. 

three  mile  zone,   too.   is,   in  inter-  '■"    Montville     v.    Ilaughtou      7 

national   law,  so   far   considered  a  Conn.  543. 

part  of   the   adjoining   laud,    that  ^^  Ibid. 


522  LEGISLATIVE  CONSTRUCTION.  §  374 

proliihited  tlie  sale  of  beef  tliereiii,  was  lield  not  repealed,  as 
to  the  latter  provision,  there  being  no  law,  usage,  or  custom 
to  the  contrary  ;  so  that,  under  the  later  act,  the  selling  of 
beef  in  the  part  set  aside  for  the  country  people,  even  by 
such,  remained  prohibited.""     Nor  is  an  express  declaration, 
in  a  code,  of  a  rule  of  law  or  equity,  any  indication  that  the 
rule  was  otherwise  before.'""     The  application  of  this  principle 
is  all  the  more  obvious  in  the  case  of]  provisions  sometimes- 
found  in  Statutes  enacting  imperfectly  or  for  particular  cases- 
only   that   which   was    already   and    more    widely  the   law. 
[Such  enactments]  have  occasionally  furnished  ground  for 
the  contention  that  an  intention  to  alter  the  general  law  was 
to  be  inferred  from  the  partial  or  limited  enactment ;  resting 
on  the  maxim,  expressio  unius  est  exclusio  alterius.     But 
that  maxim  is  inapplicable  in  such  cases.'"'     The  only  infer- 
ence  which  a  Court  can   draw  from    such  superfluous  pro- 
visions (which  generally  find  a  place  in  Acts  to  meet  un- 
founded objections  and  idle  doubts),  is  that  tlie  Legislature 
was  either  ignorant  or  unmindful  of  the  real  state  of  the  law, 
or  that  it  acted  under  the  influence  of  excessive  caution  ;  and 
if  the  law  be  different  from  what  the  Legislature  supposed 
it  to  be,  the  implication  arising  from  the  Statute,  it  has  been 
said,  cannot  operate  as  a  negation  of  its  existence  (a)  ;  and 
any  legislation  founded  on  sucli  a  mistake  has  not  the  effect. 
«.f  making  that  law  which  the  Legislature  erroneously  assumed 
to  be  so.     Thus,  when  in  contending  that  debts  due  by  cor- 
porate bodies  were   subject   to   foreign  attachment    in  the 
Mayor's  Court,  the  express  statutory  exemptions  of  the  East 
India  Company  and  of  the  Bank  of  England  were  relied  upon 
as  supplying  the  inference  that  corporate  bodies  were  deemed 
by  the  Legislature  to  be  subject  to  that  process,  the  judicial 
answer  was  that  it  was  more  reasonable  to  hold  that  the  two 
•rreat  corporations  prevailed  on  Parliament  to  prevent  all 
(piestions  as  to  themselves  by  direct  enactment,  than  to  hold 
that  Parliament  by  such  special  enactment  meant  to  dcter- 

98  Mayor  of  Pliilad'a  v.  Davis,  6  397-399. 
Watts  &  S.  (Pa.)  2o9,  278.  (n)  Per  Cur.  in  Mollwo  v.  Court 

'00  Nunally  v.    White,    3    Mete,  of  Wards,  L.  R.  4  C.  P.  419,  437  ; 

(Ky.)  584.  «'i"fl  s<^G  per  Cockburn,   C.  J.,  iu 

'01  See,  as  to  propor  incaniD!?  and  Shrewsbury  v.   Scott,  6  C.   B.  N. 

application  of  this  maxim,  post,  §§  S.  1,  29  L.  J-  53. 


§  375]  LEGISLATIVE  CONSTRUCTION.  523 

mine  the  question  in  all  other  cases  adversely  to  corporations 
(a).  A  local  Act  which,  in  imposing  wharfage  dues  for  the 
maintenance  of  a  harbor  on  certain  articles,  expressly 
exempted  the  Crown  from  liability  in  respect  of  coals  im- 
ported for  the  use  of  royal  packets ;  and  the  provisions  in 
turnpike  Acts  (b),  which  exempted  from  toll  carriages  and 
horses  attending  the  Queen,  or  going  or  returning  from  such 
attendance ;  were  not  suffered  to  affect  the  more  extensive 
exemptions  which  the  Crown  enjoys  by  virtue  of  its  preroga- 
tive ((?).  [So,  an  express  declaration  that  persons  interested 
in  the  recovery  of  a  penalty  may  be  witnesses  does  not 
operate  as  a  repeal  of  an  earlier  act  authorizing  parties  to 
proceedings  generally  to  be  so.'°*  Nor  w^ould  a  statute 
amendatory  of  another  and  giving  a  right  of  appeal  in  certain 
cases  be  construed  as  showing  that  the  right  did  not  exist 
before  ;'°^  nor  an  affirmative  statute  authorizing  a  court  to 
permit  a  guardian  to  sell,  etc,  that  he  had  no  right  to  sell 
without  such  permission/"*] 

§  375.  Effect  of  Recitals  in  Statutes.— A  mere  recital  in  an 
Act,  whether  of  fact  or  of  law,  is  not  conclusive,  but  Courts 
are  at  liberty  to  consider  the  fact  or  the  law  to  be  different 
from  the  statement  in  the  recital,  [nor  is  a  party  estopped 
from  denying  by  plea  and  putting  in  issue  the  existence  of  a 
fact  recited  as  such  even  in  a  public  statute,'"^]  unless,  indeed, 
it  be  clear  that  the  Legislature  intended  that  the  law  should 
be,  or  the  fact  should  be  regarded,  as  recited.  If,  for- 
instance,  a  road  was  stated  in  an  Act  to  be  in  a  certain  town- 
ship, or  a  town  to  be  a  corporate  borough,  the  statement,, 
though  some  evidence  of  the  fact  alleged,  would  be  open, 
to  contradiction  (d).  [So,  if  a  statute  recites  that  a  person  is- 
a  member  of  a  company,'"^  that  a  prior  life-tenant   of    an, 

(a)  London  Joint  Stock  Bank  v.  410. 

Mayor  of  London,  1  C.  P.  D.  17.  'o^  Wallace  v.  Holmes,  9  Blatchf . 

(i)  3  Geo.  4,  c.  126,  s.   33,  and  4  65. 

Geo.  4.  c.  9o,  s.  24.  '°=  Dougherty  v.  Bethune,  7  Ga. 

(c)  Weymouth  v.  Nugent,  6  B.  90. 

&  S.  22,  34  L.  J.  81  ;  Westover  v.  (fZ)  R.    v.  Haughton,  1  E.   &  B. 

Perkins,  2  E.  &  E.  57.    28  L.  J.  501,  and  R.   v.  Greene,  6  A.  &  E. 

227  ;   Smithett  v.  Blythe,  1  B.  &  549.      [And  see  People  v.  Dana,, 

Ad.  509.  22  Cal.  11,  ante,  t^  122.] 

102   U.    S.  V.   Cigars,   1  Woohv.  '^e    gcott    v.    Berkely,    3   C.  B^ 

123.     And  comp.  ante,  §  124.  925. 

i»3  Tilford  V.  Ramsey,    43  Mo. 


524  LEGISLAIIVK     C'ONSTUUCTION.  [§  u75 

estate  is  dead,""  or  that  a  person  has  been  attainted  of  trea- 
son,""' "  the  eoiirt  will  not  act  upon  such  recitals  without 
further  evidence,  or  will  allow  them  to  be  contradicted.''"" 
"The  highest  value  which  was  ever  put  upon  such  recitals 
was  their  recognition  as  evidence  of  the  facts  contained  in 
them  ;"°  but  this  sanction  was  denied  them  when  thej' formed 
part  of  private  Acts  of  Parliament,  which  were  held  to  be 
binding  u})on  none  but  parties  and  ])rivie-.""*  So,  in  this 
cunntry,  the  recitals  in  a  })ri\'ate  act  are  evidence  only  as 
against  the  i)ersons  who  procured  the  enactment."*  The 
reason  for  attaching  sueh  slight  weight  to  the  recitals  in 
statutes  is  given  in  an  early  English  case:  "This  recital 
cannot  be  taken  to  proceed  but  upon  information,  and  the 
Court  of  Parliament  may  be  misinformed  as  well  as  other 
Courts;  none  can  imagine  they  would  ])urposely  recite  a 
false  thing  to  be  true.  .  .  .  From  hence  it  follows  that  they 
do  not  intend  any  one  to  be  concluded  by  such  recital 
grounded  upon  falsehood,  for  he  who  says  to  the  contrary 
affirms  that  their  intention  is  to  oppress  men  wrongfully.'"" 
"  When  viewed  as  a  key  to  the  interpretation,"  however,  it 
is  said,  with  much  force,  "  they  should  in  reason  be  deemed 
conclusive  of  the  recited  facts  ;  because,  wliether  really  true 
or  not,  they  explain  the  legislative  perspective  in  enacting 
the  statute,  and  only  this  is  in  any  case  gained  by  the  inter- 
preter in  looking  at  the  surroundings,""*  As  to  the  expres- 
sion of  opinion  by  the  Legislature,  as  the  inducement  for  an 
enactment,  upon   a   matter  of  fact   of   which  it  is  the  sole 

'«'  Cowell  V.  Chambers,  21  Ueav.  L.  11.  13  Cli.  D.,  at  p.  432. 

619.  "'^   Branson   v.  Wirth,  17  Wall. 

'08  Earl  of  Leicester  v.  Heydon,  32.  See,  also.  State  v.  Beard,  1  Ind. 

Blowd.  384.  .398.  400,  to  the  effect  that  recitals  in  tlie 

'"'  Wilb.,  J),  l.*).  jircanible  of  a  private  statute  are 

•'»  Ibid.  :  <;it.  R.  V.   Suttou,  4  M.  admissible,     and,     uncontradicted 

&  S.  532  ;   R.  V.  Bercnger,  3  M.  ct  and      untjualiticd,       prima      facie 

S.  G7.  evidence    of     tht;     truth     of    the 

1"  Cit.    Brett  V.   Beals,    Moody  mailers   recited,  between  the   per- 

&  Malkin.  41G  ;  Taylor  v.  Parry,  1  son  for  whose  relief  it  was  passed 

M.   &   G.,    at    p.    619;    Duke    of  and    the     Stale.       And    see    ante, 

Beaufort  v.   Smith,  4  E.x..  at  p.  §  284. 

470;  Earl  of  Shrewsbury  v.  Scott,  "''Earl   of  Leicester  v.  Heydon, 

6  C.  B.  N.  S.,  al  p.  157  •   Wharton  ubi  supra. 

Pecra.!j:e,  12  CI.   A;  Fin.,  at  p.  302,  '"  Bish..  Wr.  L.,  §50.    See,  also,' 

explained    by  liOrd   St.    Leonards  the  statement   tbere,  that  "  recita- 

in  the  Shrewsbury  Peerage,  7  11.  lions   in   the    preamble    must    iw 

L.  C,  at  p.  13;    S'turla  v.  Freccia,  accepted  as.   at  least,  iirim.i  facie 


§  37(J]  LKGISLATIVK     CONSTRUCTION.  525 

judge,  as,  in  an  act  authorizing  a  public  improvement  and 
subjecting  adjacent  landholders  to  taxation  to  defray  its  ex- 
pense, that  it  is  for  the  benefit  of  such  persons,  the  correctness 
or  incorrectness  of  such  an  opinion  cannot,  of  course,  be  in- 
quired into  by  thecoui-ts^  but  the  legislative  determination  of 
it  is  binding  upon  them.""  linte.g.,]  the  3G  and  37  Vict.  c. 
60,  s.  3,  would  hardly,  by  merely  reciting  that  "  an  accessory 
after  the  fact"  is  ''by  English  law  liable  to  be  i)unished  as 
if  he  were  tlie  principal  offender,"  be  understood  as  making 
so  important  a  change  of  the  law."" 

§  370.  When  and  how  Erroneous  Assumption  by  Legislature  may 
have  Force  of  Enactment. — [All  the  instances  Considered,  in 
which  the  effect  of  producing  as  a  result,  what  was  assumed 
by  the  Legislature  to  exist,  was  denied  to  its  language,  liave 
been  of  such  a  character  as  not  to  compel  a  necessary  infer- 
ence] that  the  Legislature  intended  to  alter  the  law,  and  to 
make  it  as  it  was  alleged  to  be.  A  different  effect,  however, 
would  be  given  to  an  Act  which  showed,  whether  by  recital 
or  enactment,  that  it  intended  to  effect  a  change.  If  the- 
mistake  is  manifested  in  words  competent  to  make  the  law 
in  future,  there  is  no  principle  which  can  deny  them  this 
effect  (a).  Such  was  the  effect  of  the  4  &  5  Yict.  c.  48, 
which  enacted  that  municipal  corporations  sliould  be  ratable 
in  respect  of  their  property,  as  though  it  were  not  corporate 
property  ;  but  that  such  property,  when  lying  wholly  within 
a  borough  the  poor  of  which  were  relieved  by  one  entire 
poor  rate,  should  continue  exempt  from  ratability  "as  if 
the  Act  had  not  passed."  When  the  Act  was  passed,  the 
general  opinion  was  that  such  property^  was  exempt;  but 
later  decisions  settled  that  it  was  not.  It  was  held  that  the 
above  enactment  exempted  them,  notwithstanding  the  final 
words,  which  were  considered  as  not  conveying  a  different 

and  perlia]>s  conclusively,  correct;"  resolutions    of  the  Legislature,  to 

citing  Sedgvv.   50;  R.  v.  Sutton,  4  Comm'rs     v.    State,    9    Gill   (Md.) 

M.  &  S.   oo2;  ElmondorfE  v.    Car-  379. 

michael.  3  Litt.  (Kv)  472;  McKey-  ^'^  People  v.  Lawrence,  36  Barb. 

nolds  V.  Smallhouse,  8  Bush  (Ky.)  (K  Y.)  177.     See  post,  g  421. 

447,456;  Allison  v.   K.  U.  Co.,  10  "*  See  per  Lord  Ciichnsford,  in 

Id.  1;  Branson  V.  Wirtli,  17  Wall.  Jones  v.   Mersey  Docks,  11   H.   L. 

33.    44,    and    referring    to    R.   ^.  C,  at  p.  518. 

Haughton,  1  Ellis  &B.  501;  U.  S.  (a)  l\'r  Ciir.   in  P.   M.    Genl.  v. 

V.  (;latlin,    97  U.  S.  546,  and  as  to  Early,  12  Wheat.  148. 


52G  LKGISLATIVE    CONSTKL'CTION.  [^    377 

intention  (a).  One  ground  on  wliicli  the  Exchequer  Cluunber 
held  that  the  attesting  words,  "  on  the  true  faith  of  a 
Christian,"  of  the  abjuration  oath  were  essential  parts  of  the 
oath,  was  that  l*arliament  had  put  that  construction  on  thetn, 
when  allowing  the  Jews,  a  few  years  after  enacting  the  oath, 
to  omit  those  words  when  the  oath  was  tendered  to  them  ex 
officio  (Jj).  [Thus,  a  proviso  to  a  statute  declaring  an  act 
lawful  which  was  so  before,  that  nothing  contained  in  the 
statute  should  be  construed  to  permit  the  doing  of  some 
other  thing  within  its  general  prov'isions,  equally  lawful 
before,  would  undoubtedly  have  the  effect  of  prohibiting  the 
latter  thing  for  the  future.'"  And  conversely,  where  a 
statute  in  forbidding  conveyances  of  land  to  be  made  in  a 
particular  manner,  clearly  indicated  an  intention  that 
conve_yances  previously  so  made  were  to  be  regarded  as  valid, 
it  was  held  operative  to  sustain  the  same.^'*  So,  an  act 
imposing  a  penalty  for  the  improper  use  of  sidewalks  con- 
strued by  individuals  in  unincorporated  villages  was  referred 
to  as  distinctly  recognizing  the  right  to  construct  the  same, 
and  thus  relieving  them  of  the  objection  of  being  public 
nuisances."*  Where  a  constitutional  provision  postponed 
the  date  of  the  going  into  effect  of  statutes  "  unless  otherwise 
provided,"  the  fact  that  other  stratutes  alluded  to  a  certain 
act  passed  at  the  same  session  and  in  pari  materia  as  being  in 
force,  was  held  to  give  it  immediate  effect.'"" 

§  377.  [Even  penal  jurisdictio-n  lias  been  held  to  l)e 
conferred  upon  justices  of  the  peace  as  by  necessary  impli- 
cation, by  a  statute  expressly  assuming  it  to  exist  and 
explicitly  regulating  the  detailsof  its  exercise.""]     A  Statute 

(a)  R.  V.  Oldluiin,  L.  II.  3  Q.  B.  immoral  consideration,  itbcingbut 

474.  a  rocognilioii  of  tiic  principle  tiiat 

(6)  1   Geo.   1,  St.   2,  10  Geo.  1.  c.  an  inslrnnient  or  obligalion,  given 

4;  Salomons  V.  i\Iiller,  8  Ex.   778.  by  a  man  to  a  woman  with  wliom 

"'  State   V.    Eskridge,    1     Swan  lie  lived  in  such  a   relation   wonld 

(Teun  )41l>.  not,  because  of  the  same,  be  void: 

"«MeArthur  V.  Allen,  3  Cin.  L.  Cusack   v.    While,  2  Mill  (S.     G.) 

Bui.  (O.)  771.  279. 

"'Com'lh  V.  Ilauck,  103Pa.  St.  >-"  Swann    v.     Buck.    40    iAIiss. 

536,  537.     But  a  statute  [M-ohibiting  268. 

a  married  man  from  conveying  to  a  '2'  State  v.  Miller,  23   Wis.  634, 

woman    with    whom  he  lived    in  tjiough  the  deci^i^n  concedes  that 

adultery  more   tlian  one-fourth  of  a  mere   unfounded   assumption  by 

his  estate,  would  not  be  deemed  to  the  Legislature  of  the  existence  of 

sanction  a  contract  founded  on  an  a  particular  jurisdiction  would  not 


§  378]  CHANGE    OF    LANGUxVGE.  ,  527 

•of  tlie  United  States  enacted  that  tlie  dis^trict  conrt  should, 
in  certain  cases,  liave  concurrent  jurisdiction  with  the  state 
and  circuit  courts,  as  if  (contrary  to  the  fact)  the  district 
court  had  not  ah-eady,  and  the  circuit  court  had,  jurisdiction 
But  thougli  the  language  plainly  indicated  only  the  opinion 
that  the  jurisdiction  existed  in  the  circuit  court,  and  not  an 
intention  to  confer  it,  this  effect  was  nevertheless  given  to 
the  Act,  to  prevent  its  being  inoperative,  and  to  carry  out 
what  was  the  obvious  object  of  the  Act  {a).  The  district 
court  could  not  have  had  concurrent  jurisdiction  with  the 
circuit  court,  unless  the  latter  could  take  cognizance  of  the 
same  sijits. 

§  378.  Change  of  Language. — The  presumption  of  a  change 
-of  intention  from  a  change  of  language,  of  no  great 
weight  in  the  construction  of  any  documents,  seems 
■entitled  to  less  weight  in  the  construction  of  statutes  than 
in  any  other  case  ;  for  the  variation  is  often  to  be  accounted 
for,  not  only  by  a  mere  desire  of  improving  the 
graces  of  style,  and  of  avoiding  the  repeated  use  of  the 
same  words  (h),  but  from  the  circumstance  that  Acts  are 
•often  compiled  from  different  sources;  and  further,  from 
the  alterations  and  additions  from  'various  hands  which  they 
undergo  in  their  progress  through  Parliament.  Though  the 
statute  is  the  language  of  the  three  estates  of  the  realm,  it 
seems  legitimate,  in  construing  it,  to  take  into  consideration 
that  it  may  have  been  the  production  of  many  minds  ;  and 
that  this  may  better  account  for  the  variety  of  style  and 
phraseology  which  is  found,  than  a  desire  to  convey  a  dif- 
ferent intention.  There  is  no  difference  between  a  ''stream" 
<and  a  "  river  "  in  the  24  &  25  Yict.  c.  109,  ss.  27,  28,  (c)  ; 
nor  between  "  ordinary  luggage"  in  an  Act,  and  '•  personal 
luggage"  in  a  by  law  ;  {d)  [nor  between  the  words  ''  the 
family  of  any  married  woman,"  in  the    body  of  a  section   of 

iilone    be    sufficient    to   create  it:  ley  v.  Perks,  L.  R.  1   Q.   B.  457. 

see  Hersom's  Case,  39  .Me.  470,  ante,  and   Lord  Abinger  in  K.  v.  Frost, 

§  37;J.  9  C.  &  P.  106. 

(rt)P.    M.    Genl.    v.    Early,   12  (f)  Rolle  v.  Whyte,  L.  R  3  Q.  B. 

Wheat.    136.     [Compare,    ou    the  305. 

.subject  of  implied  grant  of  juris-  ((/)  Hudston  v.  Midland  R.  Co., 

diciion,  ante,  i^^  155,  156.]  L.  R.  4  Q.  B.  366. 

(b)  Per  Blackburn,  J.,    in    Had- 


52S  (MiA.NCri;  <u-  i.ANorAOK.  [§  37S'- 

an  act,  and  '"  iho  family  of  tlic;  said  husband  and  wife,''  in  a 
proviso  thereto,  the  section  inakini^  hor  liable  for  debts  con- 
tracted by  hor  for  necessaries  for  the  siipjtort  and  maintenance 
the  former,  and  the  proviso  <leclaring  that  judgment  should 
not  be  rendered  against  her  excei>t  upon  proof  that  the  con- 
tract was  her  contract,  incurred  for  articles  necessary  for  the 
latter.'"]  So  there  is  no  material  difference  between  "  suf- 
fering''  and  "knowingly  sulfering"  persons  to  gamble  in  a 
public  house  (a).  To  'turn  cattle  loose''  on  a  public 
thoroughfare,  which  is  subject  to  a  ])enalty  by  the  Police  Act, 
2<fe  3  Vict.  e.  47,  s.  54:,  is  substantially  identical  \vith  **  leav. 
ing  cattle  "  there  "  without  a  keepei',"  contrary  to  the  High- 
way Act,  5  &  6  Will.  4,  c.  50,  s.  74  {h) ;  and  the  definition 
in  tlie  6  &  7  Yict.  c.  86,  of  a  hackney  carriage,  as  a  carriage 
plj'ing  for  hire  in  "any  public  ])lace,"  is  identical  in  mean- 
ing with  the  earlier  Act,  1  &  2  Will.  4,  c.  22,  which  defined 
it  as  plying  for  liire  in  any  "  street  or  road  "  (<:•).  It  may 
be  questioned  whether  too  much  importance  has  not  some- 
times been  attached  to  a  variation  of  language  (d).  An  Act 
which  enacted  that  "  it  shall  and  may  be  lawful "  for  a  jus- 
tice to  hear  a  certain  class  of  cases  under  50/.,  and  that  pen- 
alties above  that  sum  "  shall  "  (e)  be  sued  for  in  the  Superior 
Courts,  was  held  equally  imperative  in  both  cases,  even 
though  the  effect  was  to  oust  the  jurisdiction  of  the  Su- 
perior Courts  in  the  foi-mer  {/).  So,  though  one  section  of 
the  3  Geo.  4,  c.  39,  nuide  a  warrant  of  attorney  to  confess 
judgment,  if  not  filed  within  twenty-one  days,  "  fraudulent 
and  void  against  the  assignees"  in  bankruptcy  of  the  debtor 
and  another  iiuide  it  "  void  to  all  intents  and  purposes,"  if 
the  defeasance  was  not  written  on  the  same  paper  as  the 
warrant,  it  was  held,  notwithstanding  the  dissimilarity  of 
the  lauiruaire,  that  the  latter  section  was  not  ujore  extensive 
than  the   foi'mer,  but   made  the  warrant   of  attorney   void 

"2  Murray  v.  Keyes,  ^5  Pa.   St.  berv,  L.  K.  7  Ex.  369. 
384,  890.  (d)  See  ex.  gr.  II.  v.  Soulli  Weald, 

(a)  9   Geo.    4.    c.    61  ;   35  &   36  5  B.  &    S.  391;   Exp.    JaniKin,   4 
Vict.  c.  94 ;  Bosley  v.  Davies,  1  Q.  Cli.D.  835. 

B.  D.  84.  (<)  25  Geo.  3,  c.  51.     See  ex.  gr. 

(b)  Slierborn  v.  AVells,  3  B.  &  S.      Ilaidaiie  v.  Beuuelerk,  3  Ex.  658;. 
784,  33  L.  J.  M.  C.  179.  :\Iontiiiiue  v.  Smith,  17  Q.  B.  688, 

(c)  Skinner    v.    Usher.  L.    11.    7      21  L.  J.  73. 

Q.  a  423;  and  see  Cmtis  v.    Em-  ;/)  Cales  v.  Kuieht.  3T.  IJ.  442.. 


§   379]  CHAJJGE    OF   LANGUAGE.  529 

only  as  against  the  assignees  (a).  The  137th  section  of  the 
Bankrupt  Act  of  1849,  which  made  judges'  orders,  given 
bj  consent  by  a  "  trader,"  null  and  void  to  "  all  intents  and 
purposes,"  unless  filed,  wus  held  to  have  no  more  extensive 
meaning  than  the  provision  just  cited  of  the  3  Geo.  4,  c.  39. 
The  word  "  trader,"  which  is  used  in  the  same  and  the  pre- 
ceding sections,  was  held  to  be  confined  to  traders  who- 
afterwards  became  bankrupt;  though  tlie  word  "  bankrupt'^ 
was  used  in  all  the  other  sections  rehiting  to  the  subject. 
All  of  them,  however,  were  prefaced  by  the  preamble  that 
they  related  to  "  transactions  with  the  bankrupt  "  (J).  ] 

§  379.  It  has  been  seen  that  the  change  of  language  in  the 
later  of  the  two  statutes  on  the  same  subject  has  sometimes 
the  effect  of  repealing  the  earlier  provision  by  implication 
(c).  But  in  those  cases  the  change  was  too  significant  of  a 
changed  intention  to  save  the  earlier  Act  even  from  a  form 
of  repeal  which  is  not  favored  in  judicial  interpretation. 
The  change  would  make  no  difference  in  the  sense,  when 
the  omitted  words  of  the  earlier  enactment  were  unnecessary. 
Thus,  where  the  first  Act,  after  enacting  that  in  an  "  indict- 
ment "  for  murder  the  manner  or  means  of  death  need  not 
be  stated,  superfluously  provided  that  the  term  "  indictment  " 
should  include  *'  inquisition,"  which  it  did  ex  vi  termini, 
without  any  such  provision  (d),  and  a  subsequent  consolida- 
tion Act  repealed  and  re-enacted  the  same  enactment,  omit- 
ting the  unnecessary  interpretation  clause  ;  it  was  held  that 
the  word  ''  indictment  "  was  to  be  read  in  its  full  and  estab- 
lished meaning,  and  not  in  the  restricted  sense  in  which  the 
Legislature  apparently  understood  it  in  the  earlier  statute  (^).. 
So,  the  Merchant  Shipping  Act  of  1854,  which  required, 
following  an  earlier  Act,  that  tbe  transfer  of  ships  should  be 
registered,  but  omitted  the  proviso  of  the  earlier,    which 


(a)  Morris  v.  Mellin,  6  B.  «&  C.  P.  429. 

446,  9  D.    &   R.    503;  Beunett  v.  (c)  See  ex.  gr.  West  v.  Francis, 

Daniel,    10    B.    &    C.    500,    diss.  5  B.  &  A.  737. 

Hohoyd,  J.,  and  Parke,  .1.;  and  (d)  2  Hale  155;  Withipole's Case, 

liolfe,  B.,  in  Bryan  V.    Child,  1  L.  Cro.  Car.   134.     Alitcr   "informa- 

M.  &  P.  437.     See,  also,  Myers  v.  tion,"  K.  v.  Slator,8  Q.  B.  D.  267. 

Veitcb,  L.   R.  4  Q.  B.  649 ;  R.  v.  51  L.  J.  246. 

Tone,  1  B.  &  Ad.  561.  (e)  R.  v.  Ingham,  5  B.  &  S.  257. 

(0)  Byran  v.  Child,    1  L.   M.  &  33  L.  J.  183. 

§4 


530  CHANGE    OF    LANGI'Ar.E.  |  §  380 

declured  tliut  a  tnuisfer  /lot  registered  should  not  be  valid 
for  any  purpose  whatever,  was  construed  as  making  such  a 
ti-ansfer  void,  notwithstanding  the  omission  of  the  proviso 
{a.)  The  8  &  9  Vict.  c.  106,  which,  ai't(!r  repealing  a  simi- 
]ar  enactment  of  the  ]ircceding  session,  made  certain  leases 
void  when  not  made  by  deed,  was  construed  as  leaving  the 
unsealed  document  valid  as  an  agreement;  although  the 
repealed  Act  had  an  exj)ress  provision  to  tliat  effect,  whi(;h 
the  repealing  one  omitted  (/>). 

§  380.  Omission  of  Material  Words  in  Former  Phraseology 
Supplied. — Even  where  the  omitted  words  were  material  to 
the  sense,  bnt  might  be  implied,  the  omission  would  not,  in 
itself,  be  considered  material  ;  if  leading  to  consequences 
not  likely  to  be  intended.  Thus,  although  the  Bankruptcy 
Act  of  1860,  in  making  an  assignment  by  ii  debtor  of  all  his 
property  an  act  of  bankruptcy,  omitted  the  words  "  with 
intent  to  defeat  or  delay  his  creditors  "  which  had  been  in 
former  Acts,  it  was  held  that  no  alteration  had  been  made  iu 
the  law  ;  for  those  words  had  been  really  superfluous  and 
misleading  (c).  A  statute  which  required  witnesses  before 
an  election  commission  to  answer  self-criminating  questions, 
and  indemnitied  them  from  prosecution  for  the  offences 
confessed,  if  the  commissioners  certified  that  tliey  had  ans- 
wered the  questions,  was  held  not  to  differ  substantially 
from  an  earlier  one,  which  gave  the  indemnity  only  when 
it  was  certified  that  the  answers  were  true.  The  Court 
shrank  from  inferring,  from  the  mere  dissimilarity  of  the 
terms  of  the  two  Acts,  and  though  the  omitted  words  were 
n)aterial,  the  improbable  intention,  in  the  later  one,  to  pro- 
tect a  witness  who  had  answered,  indeed,  in  point  of  fact, 
l)ut  had  answered  falsely  or  contemptuously  ((/).  [So,  where 
an  act  permitting  divorce  on  the  ground  of  desertion  required 

(«)  Liverpool  Borough  Bank  v.  (e)  lie  Wood,  L.  R.    7  CIi.  303. 

Turner,  2  DeG.,  F.  &  J.  502,  :J0  L.  Ste  Iloin  v.  Ion,  4  B.  &  Ad.    78- 

J    ;5T9.  See  also  Exji.    Copeland,  3  DcG., 

(Z/jBond  v.  EoslinjT.  1  B.  &  S.  M.  &  G.  9. 

371,  30  J..  J.  227;  Paikcr  v.    Tas-  ((l)l\.  v.  Ilidme.  L.   B.  5  Q.   B. 

well,   2  DeG.   &  J.   55i).   27  L.  J,  877.      See  Duiu-m   v.    Tindall,   13 

212;;>e?-Byles,  J.,  in  Tidey  V.  Mol  C.  B.    258;   Ilufiho.s   v.    Mori  is,    2 

leit,  10  C.   B.   N.  S.  298,  33  L.  J  DeG.,  M.  cV  G.  349  ;  McCalnioiit  v. 


2:50. 


Riinkiu,  Id.  403. 


§  381]  CILAKGE    OF    LANGUAGE.  531 

tliat  the  desertion  be  "  without  the  consent  of  the  party 
deserted,"  and  a  later  act  omitted  those  words,  it  was  held 
that  they  were  implied  in  the  phrase  "  deserted.'""] 

§  381.  Variations  of  Phraseology  Tieated  as  Insignificant. — It 
has,  indeed,  been  said  that,  generally,  statntes  in  pari 
materia  ought  to  receive  a  nniiorm  construction,  notwith- 
standing any  slight  variations  of  phrase  ;  the  object  and 
intention  being  the  same  (a).  It  would  be  difficult,  at  the 
present  time,  to  give  countenance  to  the  doubt  whether  an 
Act  which  made  it  felony  to  steal  "  horses,"  in  the  plural 
applied  to  the  stealing  of  one  horse,  in  consequence  of  an 
earlier  Act  having  made  it  felony  to  steal  "  an}'  horse  "  in 
the  singular  (h).  The  general  language  of  a  statute  which 
repealed  one  of  limited  operation,  and  re-enacted  its  pro- 
visions in  an  amended  form,  would  be  construed  as  equally 
limited  in  operation,  unless  an  intention  to  extend  it  clearly 
appeared  (c).  [The  importance  of  the  principle  which  attaches 
slight  weight  to  mere  changes  of  phraseology,  is  particularly 
manifest  in  the  construction  of  statutes  that  are  substantially 
re-enactments,  or  that  are  intended  as  revisions  or  coi]solida- 
tions  of  others.  As  to  such  enactments,  it  is  well  settled  in 
this  country,  that,  in  the  absence  of  an  intention  to  change 
the  law,  sufficiently  clearly  appearing  from  other  guides  of 
interpretation,  or  unless  the  change  is  such  as,  in  itself,  to 
render  such  an  intention  manifest  and  certain,  mere  varia- 
tions in  the  language  of  such  enactments  from  the  language 
of  former  statutes  on  the  same  subject,  under  which  the  law 
has  become  settled,  will  not  be  regarded  as  intended  to  call 
for  a  different  construction."*  And  so,  too,  where  the  mean- 
ing of  the  phrase  in  the  former  statute  was  made  clear  by 

123  Ford  V.  Ford,  143  Muss.  577,  ning,  1  Hilt.  (N.  Y.)  271 ;  Crosswell 

578.  V.    Crauc,    7   Barb.    (X.    Y.)   191  ; 

(a)  Per  Cur.  in  Murray  v.  E.  I.  Hoffman  v.  Delihuuty,  13  Abb. 
Co.,  2  B.  &  A.  215,  referring  to  the  Pr.  (N.  Y.)  388  ;  Douglas  v.  Doug- 
Statutes  of  Linoitations.  las,  5  Ilun  (N.  Y.)  140  ;   Chambeis 

(b)  2  Hale,  365.  v.  Carson,  2  Whart.  (Pa.)9:  Com'th 

(c)  Per*  Cur.  in  Brown  v.  v.  Rainey,  4  Watts  &  S.  (Pa.)  186  ; 
McLaclilau,  L.  R.  4  P.  C  543.  Huglics    v.    Farrar,    45    Me.    72  ; 

'-*  Yates'  Case.  4  Johns.  (N.  Y.)  Burnham    v.    Stevens,    33  N.    H. 

318  ;  Re  Brown,  21  Wend.  {N.  Y.)  240  ;  ]MeXaniara  v.  R.   R.    Co.,  12 

310;  Dominick  v.  Michael,  4  Saiidf.  Minn.  388  ;  Gaston  v.  JMerriam,  33 

(N.    Y.)  374;  Theriat  v.  Hart,  2  Id.  271 ;  Conger  v.  Barker,  11  Ohio 

Hill  (N.  Y.)  380  ;  People  v.  Den-  St.  1  ;  Overfield  v.  Sutton,  1  Mete. 


532  CHANGE  OF  LANGUAGE.  [§  o81 

the  act  itself ;'"  and  especially  so,  when  the  revision  in 
which  the  departures  from  t!ie  former  phraseology  occur  was 
designed  to  "  condense  as  far  as  practicable "  the  former 
legislation  on  the  various  subjects  embraced  by  it.'"  To 
illustrate:  An  act  directing  sheriffs,  etc.,  to  give  certain 
recojrnizances  and  bonds  for  the  faithful  execution  of  their 
duties,  provided,  that  actions  might  be  instituted  upon  such 
recognizance  by  individuals  aggrieved,  "  and  if  upon  such 
suit  it  shall  be  proved  what  damage  hath  been  sustained,, 
and  a  verdict  and  judgment  shall  be  thereupon  given, 
execution  shall  issue  for  so  much  only  as  shall  be  found  by 
thx)  said  verdict  and  judgment  with  costs,  which  suits  may 
be  instituted,  and  the  like  proceedings  be  thereupon  had,  as 
often  as  damage  shall  be  so  as  aforesaid  sustained."  Under 
this  act,  it  was  held,'"  that,  in  a  suit  upon  the  recognizance, 
the  judgment  was  not  to  be  entered  for  the  penalty  for  the 
use  of  those  interested,  but  for  the  damage  sustained  by  the 
party  suing.  x\n  act  was  subsequently  passed  "relative  ta 
bonds  witli  penalties,  and  official  bonds,"  which  provided 
that  "every  bond  or  obligation  which  shall  be  given  to  the 
Commonwealth  by  any  public  officer,"  may  be  sued  and 
prosecuted  in  the  manner  therein  prescribed,  i.  e.,  permit- 
tipg  only  one  suit  and  one  judgment  to  be  entered,  and  the 
interest  of  all  persons  aggrieved  to  be,  from  time  to  time, 
suggested  on  the  record,  and  proceedings  to  be  had  by  writs 
of  scire  facias  on  such  judgments  to  ascertain  the  amounts 
which  each  may  be  entitled  to  recover.  So  much  in  the 
earlier  act  as  related  to  proceedings  on  the  official  bond  of 
the  sheriff  was  clearly  supplied  and  therefore  repealed  by 
the  later  act.  It  was  claimed,  however,  that  "  every  bond 
and  obligation"  included  also  the  recognizance,  which  is 
defined  to  be  an  "  obligation  of  record."'"*  The  earlier  act 
throughout,  used  the  word  "obligation"  in  contradistinction 
to  "recognizance."  The  later  act  employed  the  term 
"  bond  or  obligation,"  except  in  two  paragraphs,  in  the  one 

(Ky  )  G'21  ;  Allen  v.  Ramsey,  Id.  ^  '"  See  Wolvei-ton  v.  Com'lh,  7 

ey.-, ;  Ennis  v.  Crump,  6  Tex.  34  ;  Ser<r.  &  R.  (Pa.)  273. 

ani^  cases  infra.  '•'*  3  Blackst.,  Comra.  341  ;  Will- 

'"  Doiiq:la3  V.  Douglas,  supra.  iamson  v.  Jlitcbell,   1  Pen.   &  W. 

"6  Husrhes  V.  Farrar,  supra.  (Pa.Ul. 


§  381 J  CHANGE  OF  LANGUAGE.  533 

of  which  in  the  words  were  "  such  bond,"  in  tiie  other 
^'  any  bond  as  aforesaid."  The  remedies  given  in  these  por- 
tions of  tlie  statute  being  thus  clearly  confined  to  the  bonds, 
which,  if  the  words  "  bonds  or  obligations  "  in  the  other 
parts  of  the  act  were  to  inchule  recognizances  and  therefore 
repealed  the  earlier  act  as  to  such  also,  would  leave  the 
system  of  remedies  provided  incomplete,  it  was  held  that 
the  change  from  the  phrase  "  obligation  "  to  that  of  "  bond 
or  obligation  "  did  not  make  the  latter  mean  anything  differ- 
ent from,  the  former,  and  that  consequently,  as  concerned 
the  sheriff's  recognizances,  the  latter  act  did  not  change  the 
former.'"'  An  act  originally  read  that  no  person  holding 
office,  etc.,  should  be  liable  to  military  or  jury  duty,  tior  to 
arrest  on  civil  process,  or  to  service  of  subpoenas,  etc.,  while 
actually  on  duty.  It  was  re-enacted  with  the  change  of  the 
"nor  "into  "  or,"  and  of  the  "or  "into  "nor."  It  was 
claimed,  on  the  strength  of  thia  change,  that  the  phrase 
"while  actually  on  duty"  must  be  construed  as  limiting 
only  the  clause  relating  to  service  of  subpoenas.  But  the 
court  refused  to  recognize  such  as  the  effect  of  so  slight  a 
change  of  phraseology.'^"  Where  an  act  inflicted  a  punish- 
ment upon  the  father  o?*  mother  abandoning  his  or  her  child, 
and  a  revision  of  laws  embodying  the  act  referred  to  inflicted 
the  punishment  "  if  the  father  and  mother,"  etc.,  it  was 
held,  that,  as  the  variation  in  the  language  was  too  slight  to 
raise  a  presumption  that  the  Legislature  intended  to  change 
the  law,  "  and "  should  be  read  "  or,"  in  the  revision."' 
Conversely,  a  substitution,  in  a  re-enactment  of  an  earlier 
statute,  of  "unlawful  or  forcible  entry,"  was  read  "unlaw- 
ful and  forcible  entry,"  as  in  the  original  act.'^''     And  where 

'2^  McMicken  v.  Cnm'tb,  58  Pa.  the  merits  Iny  under  the  acts  on 

St.  213.     The  Pennsylvania  acts  of  1839  and  1854  from  the  judgment 

1839  andl854directed  certain  courts  of  the  lower  to  the  Supreme  Court : 

to  "proceed  upon  the  merits  of  the  Election  Cases,  65  Pa.   St.  20;  it 

complaint  and    determine  finally  was  lield  that  none  lay  under  the 

concerning"  certain  election  con-  act  of  1874  :   Carpenter's  App.,  11 

tests  ;  the  constitution  of  1874,  art.  "W.  N.  C.  163. 

viii,  §   17,  directs  that  the    "trial  ^^^  Coxton    v.     Dolan,    2    Daly 

and    determination"    of    election  (N.    Y.)  66.     See  this    case,  post, 

contests  shall  be  by  the  courts,  and  §§  414,  415. 

the  act  of  1874  directs  that  certain  *"   i^i  state  v.  Smith,  46  Iowa,  670. 

■election  contests  shall  be  "  tried  and  '^^  \Yiijte,.fjgi(]    y^    Strauss,     24 

determined"    by    certain     courts.  "Wis.  394. 
It  had  been  held  that  no  appeal  on 


534  CIIANGK  OF    LANGUAGE.  [§  SSS" 

ail  act  passed  in  ISOO,  ainenclL'd  and  le-enacted  another, 
passed  in  1858,  ])roviding  that  every  conveyance  not  recorded 
should  be  void  as  against  attachment  and  judgment  credi- 
tors, but  omitted  the  words  "  liereafter  made,"  wliich 
wei'C  in  the  act  of  1858,  it  was  lield,  nevertheless,  not  to 
apply  to  conveyances  executed  before  the  hitter  statute  had 
l)een  passed."^  All  the  more  self-evident  is  this  rule,  where 
the  variation  in  the  language  of  tiie  later  act  is  only  designed 
to  adopt  by  precise  language  the  construction  placed  u])on 
the  former  one.'"] 

§  382.  When  Diflference  in  Language  Indicative  of  Difference  in 
Meaning. — As  the  Same  expression  is  presumed  to  be  used  in 
the  same  sense  throughout  an  Act,  or  a  series  of  cognate 
Acts,  so  a  difference  of  language  may  be  prima  facie  regarded 
as  indicative  of  a  difference  of  meaning  («).  [''  Indeed,  the 
words  of  a  statute,  when  uiuimbiguous,  are  the  true  guide  to 
tlie  legislative  will.  That  they  differ  from  tiie  words  of  a 
prior  statute  on  the  same  subject,  is  an  intimation  that  they 
are  to  have  a  different  and  not  the  same  construction,  for  it 
is  as  legitimate  a  use  of  the  legislative  power  to  alter  prior 
statutes  as  to  displace  the  common  law.'""]  A  man  who 
sends  his  servants  or  his  dogs  on  the  land  of  another,  would 
be,  in  law,  as  much  a  trespasser  as  if  he  had  entered  on  the 
land  in  person  (b)  ;  but  an  Act  which  imposed  a  ]>enalty  for 
committing  a  trespass  "by  entering  or  being"  nj)on  land, 
would  be  construed  as  limiting,  by  these  superadded  words, 
the  trespass  to  a  personal  entrance  (c).  The  59th  section  of 
the  Pilot  Act,  6  Geo.  4,  c.  125,  which  exempts  from  corn- 
ea Gaston  v.  Meniam,  ^53  Minu.  462  ;  Movers  v.  Bunker,  29  N.  II. 
271.     See  Bishop  v.  Sclineider.  40      420. 

Mo.  472,  where,    under  a  provision  {a)  Per  Lord  Tenterden  in  11.  v. 

of  the  Geneial  Statutes,  adopted  in  Great  Bolton.  8  B.  &  C.  74  ;  Bielv- 
IBG.-),  that,  so  far  as  they  are  the  ett  v.  jMet.  K.  Co.,  L.  II.  2  II.  L. 
same  with  those  of  e.visrin;,^  laws,  207.  [Lehman  v.  llobinson,  5i) 
they  shall  be  construed  as  eoutinu-  Ala.  2i9  ;  Rutland  v.  Meniion,  1 
ing  the  latter  in  force,  and  not  us  Pick.  (.Mass.)  154.] 
new   enactments,  it  was  held   that  '^^  Jiich  v.  Keyser,  54  Pa.  St.  8(3, 

a  provision  curing  defects  in   con-      per  Woodward,  C.  J.,  at  p.  89. 
veyances  •'  heretofore"  made,  iden-  (i)  Baker  v.  Berkeley,  3  C.  «fc  P. 

tical  with  a  provision  of  an  act  32;  Dimmock  v.  AUeuby,  7Taunt. 
passed  in  1855,  was  confined  in  its      489. 

operation  to  conveyances  made  be-  (c)  R.   v.   Pratt,  4  E.   &  B.   8G0; 

lore  the  last  mentioned  act.  and  see  Read  v.  Edwards,  17  C.  B^ 

'^  Conv'th  v.  Messenger,  4  Mai?.s.      JS.  S.  245. 


§  384]  CHANGE  OF  LANGUAGE.  535 

pulsory  pilotage  any  sliip  whatever  which  "is"  within  the 
limits  of  the  port  to  which  she  belongs,  was  construed  as 
exempting  from  compulsory  pilotage  a  London  vessel  while 
within  the  port  of  London,  though  on  a  voyage  from 
Bordeaux  ;  but  she  would  not  have  been  exempted  under 
the  379th  section  of  the  Mei-chant  Shipping  Act  of  1854, 
which  exempts  ships  "  navigating"  within  the  limits  of  the 
port  to  which  they  belong  (a).  [Where  one  act  of  1772, 
authorizing  summary  jjroceedings  to  oust  a  tciumt,  required 
three  months'  notice  before  application  for  that  purpose 
to  the  justices,  and  a  later  one  of  1863,  three  months' 
notice  before  the  expiration  of  the  term,  it  was  held 
that  the  same  meaning  could  not  be  properly  given  to  the 
latter,  as  had  been  gived  to  the  earlier  act,  and  that,  therefore, 
it  did  not  operate  as  a  repeal  of  the  same,  but  gave  an 
additional  remedy.""  "  The  Legislature  of  1863  must  be 
presumed  to  have  known  what  the  language  of  the  Act  of 
1772  was,  and  what  judical  construction  had  been  placed 
upon  it.  Then,  knowing  this,  and  yet  not  following  it,  did 
they  not  mean  that  we  should  construe  their  language 
according  to  its  ordinary  import  ?'"" 

§  383.  Variation  of  Language  in  Same  Act. — [The  rule  that 
different  expressions  indicate  a  different  intent  applies,  of 
course,  also  to  expressions  within  the  same  act.]  Thus, 
where  one  section  of  the  Adulteration  of  Food  Act  imposed 
a  penalty  for  selling,  as  unadulterated,  articles  of  food  which 
were  adulterated  ;  and  another  provided  that  the  seller  of  an 
article  of  food  who,  knowing  that  it  was  mixed  with  a  foreign 
substance  to  increase  its  bulk  or  weight,  did  not  declare  the 
admixture  to  the  purchaser,  should  be  deemed  to  have  sold 
an  adulterated  article  ;  the  former  section  would  reach  a 
seller  who  was  ignorant  of  the  adulteration  ;  since,  where 
knowledge  was  intended  to  be  an  element  in  an  offence  under 

(n)  The  Stettin,  Br.  &  Lush.  199.  iu  itself  very  sis^uificaut,  was  aided 

But  see  Genl.  St.  Nav.  Co.  v.  Brit.  by    tlie    presumption    against    an 

&  Colon.  St.  Nav.  Co.,  L.  II.  4  Ex.  intention  to  repeal;  as,  in  the  case 

238.  of  Mc.Mickeu  v.  Com'lli,  58  Pa.  St. 

"•^  Rich  V.  Keyser,  supra.  213,  ante,  i^  881,  was  the  contrary 

^^^  Ibid.,    at   p.    89.     It   will   be  construction  of  the  language  there 

observed,    that,  in  this   case,   this  before  the  court, 
effect  of  the  cliauge  of  language. 


536  CHANGE    OF    L\NGUAaE.  [§  .'385 

the  Act,  the  Legislutiin;  had  conveyed  its  intention  in  express 
terms  {a).  In  ;in  Act  (59  Geo.  3,  c.  50)  which  provided 
that  no  person  shonkl  acquire  a  settlement  in  a  parisli 
by  a  forty  days'  residence  in  a  tenement  rented  i)y  him, 
unless,  if  a  house,  it  was  "  held,"  and  if  land,  it  was 
'•  occupied "  by  him  for  a  year,  effect  was  given  to  the 
two  different  words  as  expressing  different  ideas,  by  holding 
that  a  house  need  not  be  "  occupied  "  for  the  purpose  of 
acquiring  a  settlement  (h) ;  though,  it  was  observed,  this  was 
probably  not  really  intended  by  the  Legislature  (c).  The 
9  Geo.  4,  c.  14,  which  adnnts  of  no  acknowledgment 
of  a  debt  to  bar  the  Statute  of  Limitations  unless  it  be 
signed  by  "  the  party  chargeable  thereby,"  was  held  not 
satisfied  by  the  signature  of  an  agent,  partly  because  other 
provisions  spoke  expressly  of  agents  as  well  as  of  principals, 
and  thus  showed  that  the  Legislature  had  not  in  its 
contempktion  the  maxim  that  qui  facit  per  alium  facit  per 
se  {d).  [And  so,  in  a  case  already  referred  to,"' the  use  of 
the  word  "bond"  in  the  portions  of  the  act  giving  the 
remedy,  narrowed  the  construction  of  the  plirase  "  bond  or 
obligation"  previously  used,  and  precluded  their  construction 
as  embracing  recognizances. 

§  384.  Omitted  Words  of  Earlier  Act  when  not  supplied  in  Later. 
— [An  omission  in  a  later  Act  of  words  used  in  an  earlier 
one,  and  not  supplied  by  any  natural  sense  of  the  words 
employed""  or  suggested  by  the  interaction  of  some  other 
rule  of  construction,""  cannot  bo  read  into  the  later  statute 
so  as  to  restrict  its  operation  ;""  although  it  may  seem  likely, 
that   the   omission    of    the   qualifying  words   was   uninten- 

(a)  Fitzpatrick  v.  Kolly,  L.  R.  8  429;  Wiley  v.  Crawford,  1  E.,  li. 
Q.  B.    337.     See  Pope  v.   Tvi'ile      &  E.  253. 

and   Roberts  v.  Egerton.  E.  R.  »  (d)  Hyde  v.  Johnson,  2  Bing.  N. 

Q.  B.  494,  43  L.  J.  M.   C.   129  :ind  C.  ?7G. 

1^5.  's**  McMicken  v.   Coni'lh,  siipni, 

(b)  R.  V.  North  Collinsrhiim,  1  B.  ante,  i^  ;]81. 

&   C.    578;  R.  v.  Great' BoUon,  8  '^^^  See  Ford  v.  Ford,  143  Mass. 

B.  &  C.  71.  577,  ante,  i^  380. 

(c)  Per  Best.  J.,  in  R.  v.  N.  "o  j\^s  to  the  presumption  against 
Collingham,  ubi  sup.  See  other  retrospective  operation:  see  Gaston 
iUust.  in  Lawrence  v.  King,  L.  R.  v.  Merriam,  33  iMinn.  271,  ante, 
3  Q.  B.  345  ;  Exp.  Gorely,  4  DeG.  §  381. 

.T.  &  S.  477  ;  Gale  v.  Laurie,  5  B.  &         "'  See,    for  an   instance.    R.    v. 

C.  156;  Cornluli  v.Uudson,8  E.&B.     Llangian,  4  B.  &  S.  249  ;  32  L    J. 

M.  0.  225,  ante,  §  199. 


■§  3S5j  CONSTRUCTION    IN    BONAM  PAIilKM  537 

•tionul."''  Thus  wiicn  ;iii  act  subjected  certain  vegetable 
substances  "used  for  cordage"  to  duty,  and  a  later  act 
enumerated  as  dutiable  the  same  substances,  without  adding 
the  qualifying  words  "  used  for  cordage,"  the  court  refused 
to  supply  the  same.'"'  So,  where  an  act  prohibited  the 
carrying  of  concealed  weapons,  with  an  exception  as  to  per- 
sons journeying  out  of  the  state,  and  a  later  act,  covering 
the  whole  subject-matter  of  the  fornjer  and  consequently 
repealing  it,  omitted  this  exception,  it  was  held  to  be  wiped 
out/"  Again,  where  the  later  of  two  acts  upon  limited 
partnerships  omitted  the  infliction,  prescribed  by  the  earlier, 
of  a  penalty  for  the  omission  of  certain  matters  required  by 
both,  the  court  said  :  "  we  must  presume  that  the  [earlier] 
act  .  .  and  the  decisions  under  it  were  well  known  to  the 
law-makers  at  the  time  the  [later]  act  .  .  was  passed.  The 
-omission  to  prescribe  the  penalty  .  .  is  good  reason  for 
concluding  that  no  such  liability  was  intended.'"  As  applied 
to  the  construction  of  revisions  and  codifications  and  their 
effect  upon  such  portions  of  the  older  enactments  incorpo- 
rated in  them,  which  they  do  not  reproduce,  the  effect  of  their 
•omission  has  been  already  considered.'*"  Unlike  a  mere 
change  in  the  phraseology,  such  an  omission,  which  cannot 
of  course  be  supposed  to  have  been  unintentional, '"  is,  in 
general  to  be  regarded  as  a  repeal  of  the  omitted  acts  or  pro- 
visions, and  the  courts  are  not  at  liberty  to  revive  them,  by 
construction.'"] 

§385.  Words  construed  in  Bonam  Partem. — It  is  said,  and  in 
a  certain  and  limited  sense  truly,  that  words  must  be  taken 
in  a  lawful  and  rightful  sense.  When  an  Act,  for  instance, 
gave  a  certain  efficacy  to  a  fine  levied  of  land,  it  meant  only 
a  fine  lawfully  levied  {a).  _   The  provision  that  a  judgment 

"2  Woodbury  v.  Ben y.  18  Ohio  Creditors,  11  La.  An.  470  ;  Buck 

St.  456.     Ami  conip.  ante,  ^  16.  v.  Spofford,  31  JNIe.  34  ;  Pingrec  v. 

i«  Wills  V.    Russell,    100   U.  S.  Snell,    42    Id.    53:     Broaddus  v. 

621.  Broaddus,     10     Bush    (Kv.)    299  ; 

'■"Poev.  State,  85  Teun.  495.  Campbell  v.    Case,    1    Dale.    17; 

"3  Eliot  V.   Ilimrod,  108  Pa.   St.  Tafoya  v.    Garcia.    1  N.  M.  480  ; 

569,  573.     See,  also,  ante,  §  199.  and  cases  in  preeedinj?  notes,  an(l 

"8  See  ante,  t^i;  201-203.  ante,  §^  195-196.  201,  202. 

i«  State  V.  Clark,  57  Mo.  25.  (a)  Co.  Lilt.  381b  ;  2  Inst.    590. 

"8  See  Ellis   v.    Paige,    1   Pick.  [And    "entitled"    means    legally 

■^Mass.)    43,     45  ;     Blackburn    v.  entitled :    ante,   p.    155,    note  {b). 

Walpole,    9   Id.     97 ;    Stall'ord    v.  See  also  §  44.] 


53S  C()\.>TUL(TI<iX    IX    BOX  AM    I'AKTKM.  [§  385 

ill  tlic  Lord  Mayors  Court,  when  removed  to  the  Superior 
Court,  shall  have  the  same  effect  as  a  judgment  of  the  latter, 
Avould  not  apply  to  a  judi^meut  which  the  inferior  tribunal 
had  no  jurisdiction  to  pronounce  {a).  So,  an  Act  which 
ret|uires  the  payment  of  rates  as  a  condition  precedent  to  the 
exercise  of  the  franchise  would  not  be  construed  as  exclud- 
ing from  it  a  person  who  refused  to  pay  a  rate  which  was 
illegal,  though  so  far  valid  that  it  liad  not  been  quashed 
or  appealed  against  (J).  A  statutory  authority  to  abate 
nuisances  would  not  justify  an  order  to  abate  one,  when  it 
could  not  be  obeyed  without  committing  a  trespass  (c).  A 
highway  surveyor,  who  is  required  by  the  Highway  Act  of 
1862  to  "conform  in  all  respects  to  the  orders  of  the  board 
in  the  execution  of  his  duties,"  is,  like  the  clergyman  who 
had  sworn  canoiiieal  obedience  to  his  bishop  {d),  bound  to 
obey  only  lawful  orders,  which  his  superior  has  authority  to 
give  ;  so  that  he  is  personally  liable  for  his  act,  if  the  board 
had  no  jurisdiction  to  make  the  order  under  which  he  did 
it  (e).  The  199th  section  of  the  Companies  Act,  1802, 
providing  for  the  winding  up  of  companies  of  more  than 
seveu  members  not  registered  under  the  Act,  applies  only 
to  companies  which  may  be  lawfully  formed  without  regis- 
tration, but  not  to  those  which  are  prohibited  unless  regis- 
tered (/").  [Perhaps,  upon  this  ground,  as  well  as  that  of  a 
presumption  against  an  intended  operation  beyond  the  im- 
mediate or  specilic  ol)ject  of  the  enactment,  rest  the  decis- 
ions that  an  act  validating  certain  sales  made  by  persons  in 
a  fiduciary  capacity  in  whose  appointment  or  qualification 
there  existed  some  defect  or  irregularity,  cured  only  defects 
in  proceedings  of  such  courts  as  had  jurisdiction  of  the  sub- 
ject-matter, and  did  not  validate  a  sale  wiade  by  a  trustee 
who  was  irregularly  or  defectively  appointed  or  qualified 
by  a  court  that  had  no  jurisdiction  to  make  such  an  appoint- 

(a)  Bridge  v.  Bninch,  1  C.  P.  D.      borough,  1  Ex.  I).  344. 

G33.  (,d)  Long  v.  Grt-y,   1  Moo.   N.  S. 

(b)  K  V.  Windsor  (Mayor  of),  L.      411. 

II.  7  Q.  B.  008.    See,  also.  Briiyeres  (e)  Mill  v.   Hawker,  L.  R.  10  Ex. 

V.  llaieomb,  3  A.  &  E.  381.  93  ;  comp.  Dews  v.  Riley,  11  C   B. 

{<•)  Publ.  Health  Act,  1875,  38  &  434,  2  L.  .M.  ^  P.  544. 

39    Viet.  c.    55;     Mayor   of    Scar-  (/)  Vi'*;  Padslow,  etc.,  Assoc.    20 

borouiihv.  Rural  Authority  of  Scar-  Ch.  D.  13?,  51  L.  J.  345. 


§§  386,  387]  MULTIIM.ICITV  OF  WORDS.  539 

meat  ;'"  that  an  act  declaring  in  force  all  ordinances  of  a 
city  or  other  corporation  "  in  operation  "  at  the  date  of  its 
passage,  did  not  embrace  one  vviilch  had  before  been  judi- 
cially pronounced  inoperative;''"  and  that  an  act  authorizing 
the  conveyance  by  a  certain  county  to  the  state  of  such  lands 
as  the  former  should  then  hold  b}'  virtue  of  tax  deeds 
issued  upon  sales  for  delinquent  taxes  theretofore  made,  was 
inapplicable  to  lands  of  which  the  tax  deeds  held  by  the 
county  were  void  on  their  faces,  though  there  were  no  lands 
to  which  the  act,  thus  construed,  could  apply.""] 

§  386,  Multiplicity  of  Words. — AVherc  words  have  each  a 
separate  and  distinct  meaning,  its  exact  sense  ought,  prima 
facie,  to  be  given  to  each  ;  for  the  Legislature  is  not  supposed 
to  use  words  without  a  meaning.  But  the  use  of  tautologous 
expressions  is  not  uncommon  in  statutes.  Thus,  an  Act 
which  makes  it  felony  "falsely  to  nudce,  alter,  forge,  or 
counterfeit"  a  bill  of  exchange,  gains  little  in  strength  or 
precision  by  using  four  words  where  one  would  have  sufficed. 
It  cannot  be  doubted  that  be  who  falsely  makes,  or  alteis,  or 
counterfeits  a  bill  is  guilty  of  forging  it  {a).  [It  is  not  per- 
missible, therefore,  to  wrest  words  from  their  proper  and 
legal  meaning,  simply  because  they  are  superfluous;'"^  just 
as  it  is  unsafe,  in  the  construction  of  a  special  act,  to  depart 
from  the  plain  meaning  of  its  language  in  order  to  give  it 
any  other  effect  than  that  of  an  express  affirmation  of  a  duty 
which  would  otherwise  have  been  implied.'^'] 

§  387.  Same  and  Different  Meanings  in  Same  Word. — It  has 
been  justly  renuirked  that,  when   precision   is  required,  no 

"^  Halderman    v.    Young ,  lOT  to  coustiUite  a    board   oT  hcaltli, 

Pa.   St.  324.  etc.,    was   held   to    authorize    the 

'=•>    Allen    V.    Savannah,    9   Ga.  appointment  of  a  woman.)  And  the 

286.  limitation    to   twenty  days   of  the 

'=^  Haseltine  v.  Hewitt,  61  Wis.  time  witiiin  whieh  a  certiorari 
12i.  And  see  ante,  §  115.  A  miglit  be  taken  to  the  judgment  of 
general  statute  rehitiug  to  gaming,  a  justice  of  the  peace  was  held  to 
giving  an  action  to  recover  money  npply  only  in  cases  where  the  jus- 
lost  a1;  gaming  to  the  loser  or  "  any  lice  had  jurisdiction:  Graver  v. 
olher  person,"  does  not  include  Fehr,  S9  Pa.  St.  460,  464  ;  and  see 
the  wife  of  the  loser,  but  means  Lacock  v.  W'liie,  19  Id.  495. 
persons  competent  to  sue  :  Moore  (n)  Teauuu's  Case,  K.  &  R.  33. 
V.  Settle,  82  Ky.  187.  (See  ''-■  Houiiii  v.  Windus,  L.  R.  12 
Opin.     of     Justices,      i:]6     ]Mass.  Q.  B.  D.  229. 

578,  where  an  act  authorizing  the  '^^    See     Morris,     etc.,     Co.    v.. 

governor  to  appoint   nuie  jwrsons  State,  24  N.  .1.  L.  62. 


54<">  MULTiPLicrrv  ok  words.  [§  387 

safer  rule  can  be  followed  than  always  to  call  the  same  thing 
by  the  same  name  {a).  ["  It  is  the  bungling  attempts  of  the 
penman  to  say  the  same  thing  in  different  words,  which  so 
frequently  involves  the  meaning  of  the  Legislature  in  uncer- 
tainty.'""] It  i-s,  at  all  events,  reasonable  to  presume  that 
the  same  meaning  is  intended  for  the  same  expression  in 
every  part  of  the  Act  (I).  But  the  presumption  is  uot  of 
much  weight.  In  the  12  ife  13  Vict.  c.  96,  for  instance, 
which  nudvcs  any  "person  "  in  a  British  possession  charged 
with  any  crime  at  sea  liable  to  be  tried  in  the  colony,  and 
provides  that  where  the  offence  is  murder  or  manslaughter 
of  any  "person"  who  dies  in  the  colony  of  an  injury 
feloniously  inflicted  at  sea,  the  offence  shall  be  considered  as 
having  been  committed  wholly  at  sea ;  the  word  "  person  " 
would  include  any  human  being,  wlieu  relating  to  the  sufferer, 
but  would,  as  regards  the  offender,  include  only  those  persons 
who,  on  general  principles  of  law,  arc  subject  to  the  juris- 
diction of  our  Legislature,  and  responsible  for  their  acts  (c). 
In  the  enactment  which  makes  it  felony  for  anyone, "  being 
married,"  to  "  many  "  again  while  the  former  marriage  is  in 
force,  the  same  word  has  obviously  two  different  meanings, 
necessarily  implying  the  validity  of  the  marriage  in  the  one 
case,  and  as  necessarily  excluding  it  in  the  other  (d).  So,  it 
seems  to  iiave  been  once  thought,  that,  in  the  Act  of  Anne, 
which  gave  the  loser  at  play  a  right  to  recover  by  action  his 
losses  above  101.,  when  lost  at  a  single  sitting,  and  gave  an  in- 
former the  right  to  recover  them,  and  treble  value  besides,  if 
the  loser  did  not  take  proceedings  in  time,  the  expression  "a 
single  sitting  "  might  receive  two  different  meanings,  accord- 
ing as  the  plaintiff"  was  the  loser,  or  an  informer  :  that  is, 
that  a  sitting  suspended  for  dinner  should  be  held  single  and 
continuous  when  the    loser  sued,  but   be   broken  into  two 

(a)  Sir  G.  C.   Lewis,    Obs.  and  the  judft-mcnls  of  Cockburn,  C.  J.. 

Reas.  in  Polit.,  vol.  i.  p.  91.  in  Sinilh  v.  Brown.  L.  K.  G  Q.  B. 

•^•i  Mayor  of  Philad'ii  v.  Davis,  6  729,  and  of  Baggalay.  L.  J.,  in  the 

Watts  <fc  b.    (Fa.)    269,    278,    i)er  Fianconia,  2  P.  D.  174. 

Gibson.  C.  J.  (c)    See    U.    S.    v.     Palmer,     3 

(6)  Courtauld  v.  Legh,  L.    R.  4  "Wheat.  631  ;  and  see  R.  v.  Lewis, 

Ex.   40,   j}er   Cleasby,  B.  ;    R.    v.  Dears.,   C.    &   B.  182,  and    other 

Poor  Law  Comm'rs.  6  A.  &  E.  68.  cases  cited,  sup.  §  174  et  seq. 

per  Lord  Deuman.     lie   Kirlcstali  (d)  K.  v.   Allen,  L.   R.   1  C.  C. 

Brewery,    5  Ch.  D.    535.     Comp.  367. 


§  388]  PARTICULAR  EXPRESSIONS.  541 

sittings  when  the  action  was  brought  by  tlie  informer ;  on. 
the  ground  that  in  the  one  case  the  act,  was  remedia],  and 
therefore  entitled  to  a  beneficial  construction,  while  in  the 
latter  it  was  penal,  and  therefor^  was  to  be  construed  strictly 
{a).  But  unquestionably  the  interpreter  is  bound,  in  general, 
to  disclaim  the  right  to  assio-n  diflerent  n)eanin(i:s  to  the  same 
words  on  the  ground  of  a  supposed  general  intention  of  the 
Legislature  (5). 

§  388.  Particular  Expressions  Frequently  Used  in  Statutes. 
Gender,  Number,  etc. — It  may  be  convenient  to  mention,  in 
this  connection,  the  meaning  in  which  a  few  words  and 
expressions  in  frequent  use  in  statutes,  are,  in  general,  under- 
stood. It  has  been  enacted  [in  England],  that,  in  statutes 
passed  after  1850,  words  importing  the  masculine  gender 
include  females, '^^  the  singular  includes  the  plural,'^®  and  the 
plural  the  singular,"'  unless  the  contrary  is  expressly 
provided.  The  word  "•  land  "  includes  messuages,  tenements- 
and  hereditaments,  houses  and  buildings  of  any  tenure,  unless 
there  are  words  to  exclude  houses  and  buildings,  or  to  restrict 
the  meaning  to  tenements  of  some  particular  tenure,'^^  and 

(a)  Bones  v.   Booth,   2   W.    Bl.  Croskey  v.    Manufg  Co..    48  111, 
1226.     [Comp.  post,  §  514.]  481  ;   (but  see  Pniyear  v.  Piirycar. 

(b)  Per  Lord  Denman  in   R.  v.  4  Bax.   (Teun.)  52<3 ;)  lauds,   tene- 
Poor  Law  Com.,  (3  A.  &  E.  5G.  mcnts  and  hevediiaments,  and  all 

'^*     See     similar     construction,  rights  thereto  and  interests  tliereiiv 

ante,  §  103:   also    Smith  v.  Allen,  or  appurtenant  thereto  :  Alexander 

31    Ark.    268,    where   a   statutory  v.    Miller,    7   Heisk.    (Tenn.)    05  : 

provision    "when   any  man    shall  Cincinnati  College  v.  Yeatmau, 'dO 

die  leaving  minoj-  children  and  no  Ohio  St.  276  ;  Lawience  v.  Belger, 

widow,"   was   held  to  apply   to  a  31    Id.    175    (vested    remainders)  ; 

woman    dying,    leaving    a   minor  State  v.  Tichenor,  41  N.  J.   L.  345 

child  and  no  husband.     Comp.  R.  (ways  appurtenant  :  but  see  Tavlor 

V.  Smith,  R.&R.  267,  that,  "his"  v.    'Welbey.     36    Wis.    42.     that 

includes  "hers."  "inclosure"     includes     only     the 

^=*   Recog.nized   in    Garrigus  v.  tract    surrounded    by    an     actual 

Comm'rs,  39  Ind.  66,  but  as  appli-  fence,    and  the  fence,    but  not  a 

cable  only  where  the  clear  sense  of  part   of   the   highway   outside,  of 

the   words,  as  shown  by  the  con-  which  the  owner  of  the  tract  has 

toxt,    renders     such    construction  the   fee, — under    an    nvt    limiting 

necessary.  the    right   of   distraining    animals 

'^^  See  State  v.  Main,  31  Conn,  damage  feasant  to  those  doing  so 

572,    where    keeping  a    house  of  upon  an  inclosure) ;  People  v.  N.. 

ill-fame  was  held  punishable  under  Y.  Tax,    etc.,    Comm'rs,  23   Ilun 

a  statute  against  keeping  "  houses"  (N.  Y.)  687  (easements)  ;  People  v. 

of  ill-fame.        See,  also,    Ilill    v.  N.  Y.  Tax,  etc.,   Comm'rs,  82  N. 

Williams,  14  Serg.  &  R.  (Pa.)  287,  Y^  450  (foundations,  columns  and 

289.  superstructure  of  elevated  railway. 

'**  Sec    ante,    §  3.     It    means  See  Frankfort,    etc.,    Turnp.    Co. 

the  land  wi.th  tiie  improvements:  v.    Cem'tli,  82  Ky.    386,.  that  tha 


542  PAKTICULAK  EXPRESSIONS.  [f^  388 

the  words  "oath,"'  "swear,"  and  "affidavit,"'"  iiichide 
affirmation,  dedaration,  affirming  an<l  declaring,  in  the  case 
of  ])ersons  by  law  allowed  to  declare  or  affirm,  instead  of 
swearing  (a).  [The  "passage"  of  an  act,  in  general,  njeans 
its  completion  as  a  law,  bv  the  approval  of  the  executive,  its 
passage  over  his  veto,  or  the  expir;:tion  of  the  time  limited 
for  its  return  if  neither  signed  nor  vetoed.'""] 

When  imprisonment  is  provided,  immediate  imprisonment 
is  generally  understood  (b),  and  "  forfeiture  "  means  forfeiture 
to  the  Crown,  except  when  it  is  imposed  for  wrongful  deten- 
tion or  dispossession  ;  in  which  eases  the  forfeiture  goes  to 
the  benefit  of  the  party  wronged  (c).  [xi  difference  is  said 
to  exist  between  a  forfeiture  at  common  law,  and  a  forfeiture 
given  by  statute ;  the  former  oj^erating  to  change  the 
property  only  after  some  step  taken  by  the  Government  to 
assert  its  title  ;  the  latter  divesting  the  thing  forfeited, 
and  vesting  it  in  the  Government,  etc.,  immediately 
or  u[)on  the  performance  of  some  future  act,  according  to 
the  will  of  the  Legislature, — immediately  where  no  future 
time  or  act  is  pointed  out  by  the  statute,  so  as  to  bar  any 
action  or  defence  to  which  the  offender  would  otherwise,  as 
owner,  be  entitled.'"]  When  a"  second  offence"  is  the 
subject  of  distinct  punishment,  it  is  an  offence  committed 
after  conviction  of  a  first  {d).     [And,  it  may  here  be  added, 

interest  of  a  turnpike  company  in  writing,  mnde before  and  attested 
a  turnpike  is  included  under  by  one  who  lias  autliority  to 
"property"  in  a  taxing  act.  administer  the  same:  Knapp  v. 
So  improved  laud  was  held  to  Duclo.  1  Midi.  (N.  P.)  189;  Wind- 
include  ground  appropriated  for  a  ley  v.  Bradway,  77  N.  C.  38. 
railroad  :  Road  in  Lancaster,  68  See  Harris  v.  Lester,  80  111.  307. 
Pa.  St.  396  ;  improvements,  under  (a)  13  &  14  Vict.  c.  21,  §  4. 
mechanics'  lien  laws,  to  include  "^^  Logan  v.  State,  3  Ileisk. 
repairs  and  additions  :  Getcliell  V.  (Tenu.)  442.  It  may  mean  its 
Alien,  34  Lnva,  559  ;  and  sec  taking  effect  :  sec  ante,  |§  181,  298 
Schmidt  v.  Armstrong,  72    Pa.  St.  note. 

855:    but    not     ordinary    houses,  (h)  S  Kep.   119;   conip.  11  &  12 

under  an  act  relating  to  impiove-  Vict.  c.  43,  s.  25. 

ments,  etc.,    in   works  erected  on  (c)  1  Inst.  159;  11  Rep.  60. 

colliery       leaseholds  :     Schenley's  "''  Sedgw.,  p.  78,  cit.  Wilkins  v. 

App.,'70  Id.    98;   and   the   "  im-  De.'ipard,  5  T.  R.  112;   Roberts  v. 

provcment"  of  a  street,  in  an  act  Wetherall,  Saik.  223  ;  12  Mod.  92  ; 

requiring  uo;ic'  before  the  i)assage  U.  S.  v.  Bag.s  of  Coffee,  8  Cranch, 

of  an  ordinance  for  that  purpose,  398  ;    Bennett    v.    Art    Union,    5 

was  held  to  include   its  vacation:  Sandf.  (N.  Y.)  014. 

State   V.  Chambersburg.  39  N.  J.  (d)  2  Inst.  408.     [Bish.,  Wr.  L.. 

L.  257.  ?;    240,    cit.    Pcoi)le  v.  Butler,   3 

'^3   An  affidavit    is  an    oath  in  Cow.  (N.  Y.)  347.] 


§  389] 


PARTICULAR  EXPRESSIONS. 


543 


the  •'■  same  offence,"  as  used  in  a  constitutional  provision, 
forbidding  a  person  to  be  twice  })nt  in  jeopardy  of  life  and 
limb  for  the  same  offence,  means  the  same  both  in  law  and 
fact,  so  that,  where  an  act  is  an  offence  by  the  articles  of  war 
and  also  by  the  criminal  law,  a  trial  and  acquittal  upon  a 
charge  of  it  by  a  court-martial  will  not  shield  the  perpetrator 
from  indictment  for  it.'""]  When  a  statute  requires  that 
something  shall  be  done  "  forthwith,"  or  "immediately,"  or 
even  "instantly,"  it  would  probably  be  understood  as  allow- 
ing a  reasonable  time  for  doing  it  (a).  An  application  to 
deprive  a  plaintiff  of  costs,  which  must  be  made  "  at  the 
trial,"  was  deemed  made  in  time,  when  made  an  hour  after 
the  trial  was  over,  and  the  judge  was  trying  another 
cause  (5). 

§  389.  Day,  Week,  Month,  etc. — Half  a  year  consists  of  182, 
and  a  quarter  of  91  days  (c).  The  word  "  montli "  means 
calendar  month, '^'  unless  words  be  added  showing  lunar 
month  to  be  intended  [d).  [A  "  day  "  means  the  wliole  of 
24  hours  from   midnight  to  midnight."*]     It  used  to  be  laid 

construed  a  delegation  of  legisla- 
tive power.] 

(c)  Co.  Litt.  13r)b;  5  Rep.  61  ;  20 
Jac.  106.  [Comp.  Bish..  Wv.  L., 
§  106:  "A  year  .  .  embraces  365 
days,  or  366,  according  as  I  lie  par- 
ticular year  in  que.?lion  happens 
to  be  a  leap  year  or  not.  Sliil  the 
meaning  of  this  term  ma}^  vary 
with  the  subject  and  the  evident 
intent  :"  cit.  Englenian  v.  Stale,  2 
lud.  91  ;  Paris  v.  Hiram.  12  Mass. 
262  ;  Thornton  v.  Bovd,  2.")  Miss. 
598  ;  Barllett  v.  Kirkwood,  2  Ellis 
&  B.  771.] 

'63  Hunt.  V.  Holden,  2  Mass.  170; 
Avery  v.  Pixley,  4  Id.  460; 
Churchill  v.  Bank,  lOPick.  (M;iss.) 
532  ;  Brudenell  v.  Vaux,  2  Dall. 
(Pa.)  302  ;  Com'th  v.  Chan\bre,  4 
Id.  143  ;  Moore  v.  Houston,  3  Serg. 
SjR.  (Pa.)  144;  Gross  v.  Fowler. 
21  Cal.  392  ;  Bish.,  Wr.  L.,  ^  U).-), 
and  cases  there  cited.  And  see 
Snyder  v.  Warren,  2  Cow.  (N.  Y.) 
518 ;  Parsons  v.  Cliamberlain,  4 
Wend.  (N.  Y.)  512  ;  People  v. 
New  York,  10  Id.  393. 

(d)  13  &  14  Vict.  c.  21.  s.  4. 
'"  Zimmerman   v.    Cowan,    107 

111.  031;  Kane  v.   Com'th,   89  Pa. 


"=■-  U.  S.  v.  CashVI,  1  Hugh. 
552.    See  i^  517.  note  12. 

(a)  See  Toms  v.  Wilson,  4  B.  & 
S.  455,  32  L.  J.  33  &  282  ;  Fors- 
dike  V.  Stone,  L.  R.  3  C.  P.  607 ; 
■per  Cockljurn,  C.  J.,  in  Grittith  v. 
Taylor,  2  C.  P.  D.  202  ;  .Alassey  v. 
Sladen,  L.  R.  4  Ex.  13;  R.  v. 
Aston,  1  L.  M.  &  P.  491.  Comp. 
Exp.  Siilence,  47  L.  J.  Bkcy.  87  ; 
Gibbs  V.  Stead,  8  B.  &  C.  533  ; 
Tennant  v.  Bell,  9  Q.  B.  684. 

(b)  Jud.  A.  1875,  ord.  55  ; 
Kynaston  v.  Mackiuder,  47  L.  J. 
Q.  B.  76.  See,  also,  Pase  v. 
Pearce,  8  M.  &  W.  677.  Comp. 
R.  v.  Berks.  4  Q.  B.  D.  469. 
[Compare  ante,  §  247 — In  an  act 
concerning  the  licensing  of  the  sale 
of  liquors  in  a  certain  county,  and 
providing  that  it  should  go  into 
effect  if  a  majority  of  the  voters  of 
said  county  sliould  so  determine,  it 
was  held  that  this  meant  a  major- 
ity of  the  voters  voting  on  that 
subject  at  a  general  election  : 
Walker  v.  Oswald  (Md.)  11  Centr. 
Rep.  123.  See  State  v.  Hayes,  61 
N.  II.  264,  330,  for  the  principles 
of  construction  of  an  act  of  similar 
kind,  as  to  whether  it  was  to  be 


54i  PARTICDLAK  EXPKESSIONS.  [§  389' 

down  as  a  general  rule  that  courts  refused  to  take  notice  of 
the  fraction  of  a  day,  for  the  uncertainty,  which  is  always 
the  mother  of  confusion  and  contention  {a)  ;  and  in  civil 
cases,  a  judicial  act,  such  as  a  judgment,  is  taken  conclusively 
to  have  been  done  at  the  first  moment  of  the  day  (J).  But 
as  regards  the  acts  of  parties,  including,  in  this  expression,, 
acts  wliich,  though  in  form  judicial,  are  in  reality  the  acts 
of  jxirties,  the  courts  do  notice  such  fractions,  whenever 
it  is  necessary  to  decide  u^hlch  of  two  events  first  happened  {a). 
Thus,  they  will  notice  tlio  hour  when  a  party  issued  a  writ 
of  summons,  or  filed  a  bill,  or  delivered  a  declaration,  or  the 
shcrilf  seized  goods  {d).  A  i)erson  who  was  keeping  a  dog 
at  noon  without  a  license  would  not  escape  from  conviction 
by  procuring  a  license  at  one  p.m.  {e).  Where  the  title  of 
the  Crown  and  of  the  subject  accrue  on  the  same  day,  the 
title  of  the  Crow^i  is  preferred  (/).  [The  doctrine  that  the 
law  knows  no  fraction  of  a  day,  has,  in  genernl,  been  adhered 
to  in  this  country,'"  both  as  to  contract  rights  and  statutes. 
So,  in  regard  to  a  statute  relating  to  the  filing  of  affidavits 
of  renewal  of  mortgages,'"'  oi-  afiidavits  of  defence,'"  or  to 
the  service  of  notices,''*  or  the  assessment  of  taxes.'""  But, 
both  as  to  contracts  and  statutes,  the  rigidity  of  this  rule  has 
l)een  much  relaxed,  and  the  same  has,  indeed,  been  said  to 
be    inapplicable,    in    cases    where    the  purposes    of    justice 

St.  523  (probH)itiuG;  liquor  sellins  {d)  2  Lev.  141,  176  ;  and  jm-  Cur., 

on  the  d;iy  of  a  public  flection).  in  Edwnrds  v.  Kei:.,  9  Ex.  G28. 

See  post,  §  534.  (e)  Campbell   v.    Stningewtiys,  3 

(a)  3  Rep.  a6a  ;  Clayton's  case,  5  C.  P.  D.   107. 

Kcp.  lb.  (/)  n.  V.  Crump,  2  Ves.   295  ;  3 

(0)    Sljeliy"s     case,     1    Rep.    98;  Sbaw,  481;  R.  v.  Giles,  8  Pri.  293  ; 

Wright  V.  iMills,  4  II.  &  K  488,  28  Giles    v.    Grover,    9    Bimr.     128  ; 

L,.  J.  Ex.  223.  Edwards  v.  R.,  9  Ex.  628  ;  33  L.  J. 

(c)  P(^r  Grove,  J.,  in  Campbell  v.  165. 

St.ran-eway.s.  3  C.  p.    D.  107;  per  '-^^  See     BMu,    Wr.     L.,    §108. 

Lord  ""Mansfield  in  Combe  v.    Pitt,  Also   Zimmerman   v.    Cowan,    107 

3  Bnrr.  1434;   per  Patteson,  J.,   in  111.  631. 

Chick  V.   Smith.  8  Dowl.    337  ;  ;>er  i««  Griffin   v.   Forrest,   49    Mich.. 

Cur.  in  Edwards  v.  lieg.  9  Ex.  628,  309. 

23  L.  J   165  ;  Tuomas  V.  Desanaes,  '"Duncan  v.   Bell,   28   Pa.    St. 

•2  B.  &  A.  286;  Sadler  v.   Leigh,  4  516.     But  see   Brun  v,    David,    1 

Camp.  197;   Woodland   v.   Fuller,  Bro.  (Pa.)  323. 

11  A.  &E.  859;'romlinson  v.  Bui-  '«s  Dutty  v.   Ogden,    64  Pa.   St. 

lock,   4  Q.    B.    D.   2;;2  ;   Clarke  v.  240. 

liiadlaugh,  8  Q.  B.  D.  63,  51  L.  J.  '"^    Plovirman     v.      Williams,     3. 

1.     See  iurther,  post,  g^i  497,  498.  T«nn.  Ch.   181. 


§  389]  PARTICULAR    EXPRESSIONS.  545 

require  the  court  to  notice  fractions  of  a  day  ;""  and,  of 
course,  where  a  case  tarns  upon  the  question  of  priority  of 
one  act  over  an  other,  the  party  on  whom  the  burden  of 
proof  lies,  fails,  if  he  merely  shows  that  both  were  done  on-' 
the  same  day."^ 

[No  such  rule  applies  as  to  fractions  of  a  week.'" 
Prima  facie,  a  week  is  a  definite  period  of  time,  commencing 
on  Sunday  and  ending  on  Saturday ;'"  or,  at  least,  according 
to  more  general  acceptation,  a  period  of  seven  days.  Thus, 
where  an  order  of  court  required  commissioners,  appointed 
on  an  application  for  the  division  of  a  township,  to  give 
certain  notices  by  publication  in  newspapers,  "  three  weeks 
before  the  time  "  of  their  meeting,  it  was  iield  that  three 
insertions  in  three  successive  weeks,  but  within  less  than 
twenty-one  days  befoi'c  the  meeting,  was  not  a  compliance 
with  the  order;"*  and  a  statutory  requirement  of  publication 
for  three  weeks  successively,  has  been  held  to  mean  a  publi- 
cation for  twenty-one  days,  and  not  satisfied  by  three  insertions 
in  three  successive  issues  of  a  weekly  paper,  published,  the 
last  within  sixteen  days  of  the  first.'"  There  is  said  to  be  a 
difference,  however,  between  a  requirement  of  the  kinds  just 
referred  to,  and  one  that  calls  for  publication  "during  a 
given  numl)er  of  successive  weeks,"  or  "  by  a  given  number  of 
insertions  in  newspapers  in  successive  weeks,""*  not  appar- 
ently contemplating  publication  of  a  certain  duration  before 
the  doing  of  the  act  conditioned  upon  the  notice  thus  provided. 
So,  where  a  statute  required  publication  of  notice  for  six  weeks 
successively,   once    in    each    week,"'    or    for  six   successive 

'■'o  See  Cine.   B'k  v.  Burkhardt,  "•»  Re     North     Whitehall     Tp. 

100  U.  S.  686;  Cromelien  v.  Briuk,  supra,    cit.    Early  v.   Homans,   16 

29  Pa.  St.  522.  526  ;   Hampton  v.  How.  610. 

Erenzeller,  2  Bro.    (Pa.)  19;  Plow-  ''^  Loughridge  v.  Iluntinston,  56 

man  v.  Williams,  supra;  Neale  v.  Ind.    258.     And  see    Meredith    v. 

Utz,    75    Va.     480.       And,    as    to  Chancey,  59  Id.  406. 

commeucement    of    statutes,     see  '■">  Re    ISfcrlh     Whitehall     Tp., 

post,    §  498,    and   of  constitution,  supra,  at   p.    IGO.     Conip.  Build'g 

post,  g  534.  Ass'u  V.  Thompson,  13  Phila.  (Pa.) 

"'  Richards   v.    Fox.    52   N.  Y.  511. 

Super.  Ct.  36.  i"  Olcott  v.  Rohinson,  21  N.  Y. 

1"  Re  North  Whitehall  Tp.,  47  150  ;  Wood  v.    Morehouse,  45  Id. 

Pa.  St.  156,  161.  368 ;  and  see  Sheldon  v.  Wright.  7. 

^■3  Rotikendorflf  v.  Taylor,  4  PtJt.  Barb.  (N.  Y.)  39. 
361. 

35 


510  COMPL'TATIOX    OF  TIMK.  [^    390 

weeks,""  it  was  held  that  the  notice  was  sufficient  it"  published 
in  six  successive  numbers  of  a  weekly  paper,  though  the  first 
publication  was  less  than  six  weeks  before  the  event ;""  nor, 
of  course,  does  the  fact,  that,  between  the  date  of  the  iirst 
and  that  of  the  last  ap]iearance  of  the  notice,  the  publication 
of  the  newspaper  is  changed  from  one  day  in  the  week  to  a 
subsequent  day  in  the  same  \ve(;k,  affect  its  sutticiency,""] 

§390.  Computation  of  Time. —  In  tlie  Computation  of  time, 
distinctions  Jiave  been  made  by  the  Courts  which  were 
founded  chiefly  on  considerations  of  convenience  and  justice. 
The  general  rule,  anciently,  seems  to  ha\e  been  that  both 
terms  or  endings  of  the  period  given  for  doing  or  suffering 
something  were  included  ;  but  when  a  penalty  or  forfeiture 
was  involved  in  non-compliance  with  a  condition  within  the 
given  time,  the  time  was  reckoned  by  including  one  and 
excluding  the  other  of  the  tei-minal  days  (a).  A  distinction 
was  afterwards  made,  depending  on  whether  the  point  from 
which  the  computation  was  to  be  made  was  an  act  to  which 
the  person  against  whom  the  time  ran,  was  privy  or  not.**' 
Thus,  if  the  time  i-an  from  when  he  was  arrested,  or  received 
a  notice  of  action,  it  might  justly  be  computed  as  injjluding 
the  day  of  that  event ;  but  not  so,  if  it  ran  from  the  death 
of  another  person  (b)  ;  a  fact  of  whicli  he  would  not,  as  in 
the  previous  cases,  necessarily  be  cognizant,  Ijiut  it  has  also 
been  laid  down  that  when  a  period  of  time  allowed  to  a  per- 
son is  included  between  the  dates  of  two  acts  to  be  done  by 
another  person,  as  where  it  is  enacted  that  no  action  shall  be 
brought  against  a  justice  until  notice  of  the  intention  to 
Ijring  it  has  been  given  to  him  a  month  before  the  wi'it  is 
issued,  both  the  terminal  days  are  to  be  excluded  (c).  The 
notice  having  been  given  on  the  2Sth  ot  April,  the  action,  it 

'"*'  Stocvev's  App.,  3  Walts  &  S.  Garliuid,  15  Ves.  247;  y^e?- Parke,  B.. 

<Pa.)  134.  ill   Yoiinu-  v.   lliggon,  G  M.  &  W- 

'"  See,  also,  Pearson  v.  Bradley,  HiJ;  Newman  v.  llardwicke,  3  Ncv. 

44  111.  250  ;  Fry  v.  Bi.lwell,  74  Id.  &  P.  368. 
381.  ((■)  Per  Alderson,  B.,  in  Young  v. 

•«fStoever'.«  App.,  supra.  Iliggon,  6  M.  &   W.   53.     See  Pel • 

(a)  De  Moruaii,  OoMip.  Aim.  cited  lew  v.    Woni'ord,  9  B.   &  C     134; 

in  Sir  G.  C.  Lewis'  Obs.  and  Reas.  Blunt  v.  Ileslop,  3  Nev.  &  P.   553. 

in  I'olitics,  1.  387n.  8  A.  &  E.  124;  K.  v.  West  Riding, 

•^^'  See  Hodgson  v.  Roth,  33  La.  4  B.   &  Ad.  (385  ;  Weeks  v.   Wray, 

An.  941.  L.  R.  3Q.B.  312. 

(M  Per  SirT.  Grant  in  Letter  v. 


§390] 


COMPUTATION     OF    TIME. 


54T 


was  held,  was  rightly  brought  on  the  29th  of  May ;  what 
was  requisite  was  that  two  days  of  the  same  number  should 
not  be  comprised  in  the  computation  {a).  [On  the  other 
hand,  it  was  held  in  Pennsylvania,  under  a  statute  of  entirely 
similar  purport,  that  the  proper  rule  was  to  include  the  first 
day  and  exclude  the  last  ;"'"  so  that,  the  notice  having  been 
given  on  May  19,  suit  was  held  properly  commenced  on 
June  18.'"  A  distinction  has  also  been  drawn  between  the 
computation  from  and  act  done  and  from  a  particular  day, 
in  the  former  case  the  day  upon  which  the  act  was  done  being 
included,  in  the  latteV  excluded."*  But  this  "shadowy  dis- 
tinction "  has  been  said  to  be  exploded,"^  while  the  differ- 
ence between  an  act  to  be  done  before,  and  one  to  be  done 
after  the  expiration  of  a  given  number  of  days,  is  said  to  be 
equally  insubstantial.'"  However  this  may  be,  none  of  the 
distinctions  indicated  seem  to  have  been  generally  in  this 
country  conceded  to  have  much  or  controlling  weight,  and 
whilst  the  decisions  cannot  be  said  to  be  in  perfect  accord, 
the  weight  of  authority  seems  to  be,  that  one  of  the  termi- 
nal days  should  be  excluded,'"  and  that,  in  general,  this 
should  be  the  first  day."' 


(a)  Freeman  v.  Read,  4  B.  &  S. 
174,  33  L.  J.  AI.  C.  226.  See,  also, 
Webb  V.  Fairmauucr,  3  M.  &  W. 
47:J  ;  R.  V.  Price,  8  Moo.  P.  C. 
203;  Migotli  v.  Colville,  4  C.  P.  D. 
233,  48  L.  J.  61)5;  Be  Soulliam,  19 
Ch.  D.  1G9,  51  L.   J.  207. 

i8i  Thomas  v.  Afliick,  16  Pa.  St. 
14. 

183  Ibid. 

!«■*  Caslle  V.  Bnrdelt,  3  T.  R. 
633;  Arnold  v.  U.  S.,  9  Ciauch, 
104 ;  Atkins  v.  Sleeper,  7  Allen 
(Mass.)  487;  Handley  v.  Cunning- 
ham, 12  Bush  (Ky.)  402. 

185  Cromelieu  v.  Brink,  39  Pa. 
St.  522,  524. 

186  See  Thomas  v.  AflBick,  supra, 
at  p.  15. 

isi  Stebbins  v.  Anthony,  5  Col. 
348  ;  Com'lh  v.  Maxwell,  27  Pa. 
St.  444. 

188  See  Columbia  Turnp.  Road  v. 
Haywood,  10  AVend.  (N.  Y.)  432  ; 
Misch  V.  Mnyhew,  51  Cal.  514  (three 
days); Brown  v.  Buzon,  84In<1.194; 
Catterliu    v.  Frankfort,  87  Id.  45; 


Reigelsberger  v.  Stapp,  91  Id.  311; 
Kerr  v.  Haverstick,  94  Id.  178; 
Beckwith  v.  Douglas,  25  Kan.  239; 
English  V.  Williamson,  34  Id.  313; 
Cable  V.  Coates,  36  Id.  191;  White 
V.  German  Ins.  Co.  15  Neb.  660; 
McGavock  v.  Pollack,  13  Id.  535  ; 
Cook  V.  Moore,  95  N.  C.  1  ;  and 
see  Walsh  v.  Boyle,  30  Md.  363. 
This  was  the  rule  inPennsvlvania, 
under  Goswiler's  Est.,  3  Pen.  & 
W.  300  ;  but  this  case  was  over- 
ruled by  Thomas  v.  Afflick,  supra, 
and  Barber  v.  Chandler,  17  Pa.  St. 
48,  the  decisions  in  which  were 
regretted  in  Cromelien  v.  Brink, 
supra,  at  pp.  534,  535.  By  act  of 
assembly,  however,  of  20  June, 
1883,  the  rule  in  Goswiler's  Est. 
is  re-instated  :  Edraundson  v. 
Wragg,  104  Pa.  St.  500.  In  sup- 
port of  the  same  rule  are  cited,  in 
Cromelien  v.  Brink,  supra,  at  p. 
525,  the  followingcases:  lloman  v. 
Liswell,  6  Cow.  (N.  Y.)  659;  Exp. 
Dean,  3  Id.  605  ;  Cornell  v.  Moul- 
ton,  3  Denio  (N.  Y.)  13 ;  People  v. 


648 


COMPUTATION  OF  TIME. 


L§39t 


§  391.  l^A  few  generally  I'eeurring  phrases  may  be  noticed 
here.  Where  time  is  to  be  computed  ''  from  "  or  "  after  " 
the  day  of  a  given  date — and  there  is  said  to  be  no  differ- 
ence between  "  from  the  date  "  and  "  from  the  day  of  the 
date""" — ihrit  day  is,  in  general,  to  be  excluded  from  the 
computation. '"'' 

[Whei-c  a  statute  required  thirty  daj-s'  publication  "•  before'^ 
the  day  of  sale,  the  day  of  publication  was  held  to  be  included 
in  the  computation.""  !So,  where  the  requirement  was  three 
months'  service  "  previous"  to  the  first  day  of  the  term."* 
Ihit  under  an  act  requiring  notices  to  be  posted  four  weeks 
"  previous  "  to  the  day  of  sale,  a  sale  on  May  14,  the  notice 
liaving  been  posted  on  April  16,  was  held  premature.*"* 

[An  order  requiring  the  tiling  of  a  bill  of  exceptions,  etc.,. 
"by"  a  certain  date,  was  held  complied  with  by  tiling  it  on 
that  date."'] 

Again,  when  so  many  "clear  days"  {a),  or  so  many  days 
"  at  least"  (J),  are  given  to  do  an  act,  or  "not  less  than" 
so  many  days  are  to  intervene,  both  the  terminal  days  are 
excluded  from  the  computation.  [And  so,  where  an  act 
required  thirty  days'  notice  of  a  tax  sale,  and  jirovided  that 
"  said  day  of  sale  shall  be  after  the  expiration  of  thirty  days'^ 
notice,"  it  Avas  held  that  both  the  day  of  giving  notice,  or  of 

of  daj's  before  the  return  day, 
both  the  day  of  service  and  I  hut  of 
return  were  held  excluded,  the 
former  by  tlie  rule  of  C(mstruction 
prescribed  by  Rev.  St.  3,  g  8,  siibd. 
11,  and  the  latter  by  the  terms  of 
the  act.  And  see  O'Connor  v. 
Towns,  1  Tex.  107. 

194  Higley  v.  Gilmer,  3  Montana, 
433.  A  statute  authorizing  i)Iain- 
tiflf  to  take  a  judirment  by  der:iult 
on  the  third  Sal  unlay  tollowing 
the  return  day  of  the  original  writ, 
unless  an  affidavit  of  defence  be 
"previously"  tiled  by  defendant, 
is  held  to  give  the  latter  the  wiiole 
of  the  third  Satnrdav  for  liie  tiling 
of  the  atlidavit:  Gillesi)ie  v.  Smith, 
13  Pa.  St.  Go.  See  Emllich,  All. 
of  Def.,  i;§  349-353. 

{a)  Liffen  v.  Pitcher,  6  Dowl.  N. 
S.  7G7. 

(6)  Zouch  V.  Empscy,  4  B.  «&  A. 
53S  ;   R   V.  Salop,  8  A.  &  E.  173. 


Sheriff,  19  Wend.  (N.  Y.)  87; 
Portland  B'k  v.  Maine  B'k,  11 
Mass.  204  ;  Rigelow  v.  Wilson,  1 
Pick.  (Mass.)  485;  Varin  v.  Edmon- 
son, 10  111.  270  ;  Weeks  v.  Hull,  19 
Conn.  376;  Carson  v.  Love,  8 
Yerg.  (Tenn.)  315. 

'*>»  See  Pugh  v.  Duke  of  Leeds, 
Cowp.  714;  Cromelien  v.  Brink,  29 
Pa.  St.  522,  524. 

1^0  See  Beniis  v.  Leonard,  118. 
Mass.  502  ;  Good  v.  Webb,  52  Ala. 
452;  Wood  v.  (^om'th,  11  Bush 
(Ky.)  220  ;  llandley  v.  Cunning- 
ham, 12  Id.  402;  Bish.,  Wr.  L., 
§  3Ia;  post,  §=498. 

'^'  Northrop  v.  Cooper,  23  Kan. 
432. 

'^'^  English  V.  Ozburn,  59  Ga. 
392. 

193  ^ard  T.  Walters,  63  Wis.  39. 
And  see  Dousman  v.  O'Malley,  1 
Dougl.  (.Mich.)  450,  where,  under 
a  statute  requiring  that  process 
sliould  be  served  a  certain  mwnber 


I  392]  COMPUTATION  OF  TIME.  549 

first  publication,  and  the  day  of  sale  were  to  be  excluded."" 
On  the  other  hand,  under  a  statutory  provision  requiring,  in 
<50urts  whose  terms  were  held  oftener  than  twice  a  year, 
a  space  of  at  least  twelve  months  to  intervene  between 
the  term  at  which  a  suit  was  returned  and  that  at  which 
judgment  was  entered  therein,  a  judgment  rendered  at  a 
term  commencing  February  10,  1868,  in  a  suit  which  was 
returned  to  a  term  commencing  February  11,  1867,  was  sus- 
tained."" And  a  provision  of  the  New  York  Code  directing 
service  of  citations  from  the  Surrogate's  Court  "  at  least  eight 
days  before  the  return  day  thereof  "  was  held  controlled  by 
another  provision  of  the  same  code  providing  that  the  time 
within  which  an  act  is  required  by  law  to  be  done  is  to  be 
<;omputed  by  excluding  the  first  and  including  the  last  day ; 
and  consequently  service,  on  the  twelfth  of  the  month,  of  a 
■citation  returnable  on  the  twentieth,  was  held  sufficient.'" 

§  392.  [When  any  matter  is  required  to  be  done  "  within  " 
a  certain  number  of  days,  the  day  that  is  the  starting  point 
is  excluded,"'  Thus,  under  an  act  allowing  lands  sold  for 
taxes  to  be  redeemed  within  two  years,  a  redemption  on 
June  10,  1852,  of  lands  sold  on  June  10,  1850,  was  in  time."' 
So,  where  the  time  prescribed  for  redeeming  aright  in  equity 
sold  on  execution  was  "  within  one  year  next  after  the  time  " 
of  the  execution  of  the  deed  to  the  purchaser,  the  day  on 
which  the  deed  was  executed  was  excluded.""  The  three 
months,  given  by  statute,  after  the  expiration  of  a  year, 
within  which  a  debtor  might  redeem  lands  sold  on  execution, 
were  held  to  begin  running  on  the  day  succeeding  the 
expiration  of  the  year.""     A  delinquent  tax  list  filed  July  4, 

"5  Steuart  v.  Meyer,  54  Md.  454.  (N.  Y.)  87.     See,  to  same  efTect,  as 

196   Manning   v.  Kobn,    44  Ala.  to   the  right  to  appeal   "within" 

343.  thirty  days:  Gallt  v.  Finch,  24  How. 

1"    Re     Carhart,     2     Demarest  Pr.  (N.  Y.)  193.      But  see  the  cou- 

(N.  Y.)   627  ;   07   How.    Pr.    216.  trolling  statutory  provision,  ante. 

And  see   State  v.    Gasconade,   33  §  392,  ^7?e  Carhart,  2  Demarest,  627. 

Mo.   102.  So,  under  a  requirement  to  pay  an 

•98  Thorne  v.  Mosher,  20  N.  J.  assessment  within  a  certain  num- 

Eq.  257  :  Barcroft  v.   Roberts,  92  ber  of  days  after  notice,  the  day 

N.  C  249,  and  cases  infra.  on  which  notice  reaches   the  party 

"9   Cromelien  v.   Brink,   29   Pa.  is  excluded  :   Protect'n    Life   Ins. 

St.  522.  Co.  V.  Palmer,  81  111.  88.     And  as 

•^00  Bigelow  V.  Wilson,  1  Pick,  to  right  of  appeal  within  10  days, 

•j(Mass.)  485.  see  Ilursh  v.  Hursh,  99  Ind.  500. 

«<"  People  V.  Sheriff,    19  Wend. 


i50 


COMP['l'.\'lI<)N   <'K  TIME. 


[§395 


is  filed  within  live  days  uf  the  l)i'i,Miiiiiiig  of  a  term  coin- 
nieiK'iiii;  on  July  9  ;"^  and  wlicre  a  city  ordinance  permits 
hogs  taken  up  to  be  redeemed  within  five  days,  the  day  on 
which  tliey  are  taken  is  not  to  be  counted/"^  So,  upder  an 
act  permitting  a  party  arrested  on  execution  to  give  bond 
conditioned  for  his  taking,  witliin  one  year  from  the  day  of 
his  arrest,  the  poor  debtors'  oath,  or,  in  default  thereof,  to 
surrender  himself,  on  the  next  day  after  the  expiration  of 
the  year,  to  the  keeper  of  the  jail,  the  day  of  arrest  was  held 
to  be  excluded  ;  so  that,  after  an  arrest  on  November  22,  of 
one  year,  a  surrender  on  November  23  of  the  next  year 
satisfied  the  condition.'"'*  Under  an  act  requiring  a  person 
desirous  of  contesting  an  election,  to  file  his  reasons  with  the 
county  clerk  "  within  thirty  days"  after  the  election,  a  filing 
within  the  last  twenty-four  hours,  though  after  the  prescribed 
office  hours,  was  held  sufficient.'"'^] 

A  continuing  act,  such  as  trespass  or  imprisonment,  dates, 
in  the  computation  of  the  time  allowed  for  bringing  an 
action  in  respect  of  it,  from  the  day  of  its  termination  {a). 
So,  a  bankrupt  remaining  abroad  with  intent  to  defeat  his 
creditors  commits  a  fresh  act  of  bankruptcy  every  day  {h). 

§  393.  Sundays  are  included  in  computations  of  time, 
except  when  the  time  is  limited  to  twenty-four  hours,  in 
which  case  the  following  day  is  allowed  (c).     Thus,  where 


202  Pi-iorv.  People,  107  111.  628. 

203  White  V.  Hawortb,  21  Mo. 
App.  439. 

•■"'^  Odlorne  v.  Quimby,  11  N.  H. 
224.  Comp.  Henry  v.  Carsou,  59 
Pa.  St.  297,  as  to  tlie  meaning  of 
the  phrase  "  die  within  ten  years," 
as  "  inside  of  ten  years." 

■^05  Zinunennan  v.  Cowan,  107 
111.  GUI,  the  direction  in  the  stat- 
ute requiring  llie  clerk  to  keeji  his 
otiice  open  from  8  a.m.  to  G  p.m., 
being  held  merely  to  make  this  a 
minimum  r(!quirement,  and  not  to 
alfect  his  right  or  power  to  do 
business  during  any  other  hours  of 
ihe  day.     See  ante,    §  JJGo,  note. 

(a)  Massv  v.  Johnson,  12  East, 
67  ;  Hardy  V.  Kvle,  9  B.  &  C.  G03; 
Collins  V.  Rose,"  5  M.  &  W.  194; 
Pease  v.  Chaytor,  3  B.  &  S.  620 ; 


Whitehouse  v.  Fellowes,  10  C.  B. 
N.  S.  7G5.  See,  however,  Wallace 
V.  Blackweli,  3  Drew.  538; 
Eggington  v.  Lichfield,  5  E.  &  B. 
lOO'^  24  L.  J.  3G0.  As  to  continu- 
ing'nui.sanee,  see  cases  in  Ballishill 
V.  Reed,  18  C.  B.  896,  25  I..  J. 
290,  and  Wiiilehouse  v.  Fellowes, 
10  C.  B.  N.  S.  765,  30  L.  J.  305. 
Encroachment,  Coggins  v.  Ben- 
nett, 2  C.  P.  D.  508. 

(b)  Exp.  Bunny,  1  De  Ge.\  &  J. 
309,  26  L.  J.  Bey.  83.  [Comp. 
Schepp  V.  Reading,  2  Woodw. 
(Pa.)  460,  ante,  g  353,  note.] 

((•)  Burn's  J.,  Tit.  Lord's  Day. 
[Bish.,  Wr.  L.,  §110e:  "  Where  .  . 
llie  law  gives  a  certain  number  of 
hours  for  the  pi^rformanee  of  an 
act,  those  even  of  an  intervening 
Sunday  are  to  be  left  out  from  the 


§393] 


COMPUTATION  OF  TIME. 


551 


an  Act  required  tliat  a  recognizance  sliould  be  entered  into 
in  two  days  after  notice  of  appeal,  and  the  notice  was  given 
on  a  Frida}',  it  was  held  that  recognizances  on  the  following 
Monday  were  too  late;  though  Sunday  was  the  last  day,  and 
the}^  could  not  be  entered  into  then  [a).  Of  course,  when 
an  Act  expressly  excludes  Sunday,  the  days  given  for  doing 
an  act  are  working  days  only  (Jj).  [It  is  said,^"*  however,  in 
this  country,  that,  to  some  extent,  Sundays  arc  excluded 
even  where  the  time  given  is  measured  bv  days,  especially 
where  their  number  is  less  than  a  week  ;^"  as  where  a  city 
charter  required  six  days'  publication  of  notice  of  the  filing 
of  the  assessment  roll  f°*  or  where  an  act  required  justices 
of  the  peace  to  render  judgment  in  three  days  ;^''°  or  gave 
four  days  for  the  entry  of  an  appeal,'''"  or  made  a  short  sum- 
mons from  a  justice's  court  returnable  in  two  days.*" 
But  where  the  period  isa  longer  one,  intervening  Sundays  are, 
in  general,  to  be  counted  in.''"*  !Nor  does  a  statutory  provis- 
ion, that,  where  the  last  day  falls  upon  Sunday  it  is  to  be 
excluded,  change  this  rule  as  to  intervening  Sundays.'"^  The 
rule,  that,  where  the  last  of  a  certain  number  of  days  allowed 
for  the  doing  of  an  act  falls  on  Sunday,  the  act  may  be  done 
on  the  next  day,"'*  has  been  by  statute,  in  many  states,  made 


count ;  the  person  bcina:  allowed 
hours  wherein  itis lawful  to  act," — 
citinij;  Meng  V.  Winklenian,  43  Wis. 
41;  Coin'th  v.  lutox.  Liquors,  97 
3Iass.  GOl,  etc.;  but  referriuc;  to 
Franklin  v.  Holclen,  7  R.  I.  215.] 

(a)  Exp.  Simpkins,  3  E.  &  E. 
392,  29  L.  J.,  M.  C.  23  ;  Peacock 
V.  Keg.,  4  C.  B.  N.  S.  264,  27  L. 
J.  224. 

{b)  Pease  v.  Norwood,  L.  R.  4 
C.  P.  235;  Exp.  Hicks,  20  Eq.  143. 

•^oe  Bish.,  Wr.  L.,  §  110c. 

^•'^  See  Chicago  v.  Iron  Works, 
93  111.  222,  and  other  cases  cited  in 
Bish.,  Wr.  L.,  §  110c,  note  4. 

*"*  Chicago  V.  Iron  Works, 
supra. 

'■'"^  Hodgson  V.  Bank'g  House,  9 
Mo.  App.  24. 

2'o  Neal  V.  Crew,  12  Ga.  93. 

''"  Sinionson  v.  Durfce,  50 
Mich.  80.  But  see  Cressey  v. 
Parks,  75  Me.  387,  where,  under  a 


statute  providing  for  the  sale  of 
property  seized  for  taxes,  after 
being  kept  four  days,  it  was  held 
that  the  day  of  seizure  should  be 
excluded,  but  an  intervening  Sun- 
day included,  and  the  property 
.sold  on  the  fourth  day  unless  that 
fell  upon  Sundiiy,  when  it  must  be 
sold  on  the  next  diiy. 

^''-  Couklin  V.  ]\Iarsliallto\vn.  66 
Iowa.  122  ;  Goswiler's  Est.,  3  Pen. 
&  W.  (Pa.)  200  ;  Edmundson  v. 
Wragg,  104  Pa.  St.  500;  Bish.,  Wr. 
L.,  >^  110c,  and  cases  there  cited  iu 
note  6.  Not,  however,  it  seems  in 
Missouri :  See  Kellogg  v.  Carrico, 
47  Mo.  157  ;  Nafl  B'k  v.  Williams, 
46  Mo.  17  ;see,  also.  State  v.  Judge, 
29  La.  An.  223.  and  comp.  Pierce 
v.  Cushina-,  33  Id.  401. 

2'3  Nat'l  B'k  V.  Williams,  sui)ra. 

214  Kegotiable  paper  is  an  excep- 
tion to  this  rule:  Edmundson  v. 
WraiTg,  104  Pa.  St.  500,  603. 


552  COMPUTATION'    OF    DISTANCES.  [§§  394,  395 

a  rule  of  statutory  coustructioii  ;'''^  hut  it  :ij)|)ears,  even  with- 
out such  distiiu't  eniictment,  to  he  very  <;eiieni]ly  recognized 
as  such.'"] 

§  394.  Periodical  Recurrences — If  the  statute  require  some 
net  to  he  done  periodically  and  recurrently  once  in  a  certain 
space  of  time,  as,  for  instance,  the  insjH'ction  of  the  hoilers 
of  steamers  once  in  six  montlis,  it  would  prohahly  be  under- 
stood to  mean  that  not  more  than  six  months  should  elapse 
hetwecn  the  two  acts.  It  would  not  be  satisfied  by  dividing 
tiie  year  into  two  equal  periods,  and  doing  the  act  once  in 
the  beginning  of  the  first,  and  once  at  the  end  of  the  second 
period  (a).  An  Act  which  imposed  a  penalt}'-  for  absence 
for  more  than  a  certain  time  in  any  one  year,  means  not  a 
calendar  year  computed  from  the  first  of  January,  but  a  year 
computed  back  from  the  day  when  the  action  for  the  penalty 
was  brought  {h). 

§  395.  Computation  of  Distances.— Distances  were  formerly 
measured  by  the  nearest  and  most  usual  road  or  way  (c);  and 
this  is  undoubtedly  the  popular  manner  of  measuring  thein 
(d).  But  if  the  nearest  practicable  mode  of  access  were 
adopted,  should  it  be  a  carriage-way,  or  a  bridle  path,  or  a 
footpath  ?  If  the  way  were  by  a  tidal  river,  the  distance 
might  vary  every  hour  of  the  day  (<?).  "Where  there  is 
nothing  in  the  statute  to  lead  to  one  construction  or  to 
another,  convenience  alone  is  the  guide  in  such  a  question 
{/).     It  is  to  be  presumed  that  the  Legislature  intends  the 


'■^'^  See,  e.  g.,  Braiuard  v.  Norton,  {d)  Per  Coloridge,  J.,  in  Lsiko  v. 

14  111.  App.  643.  Butler,  5  E.  &  B.  93,  24  L.  J.  273. 

'-'•'^  See  Gibbon  v.  Freel,  65  How.  [The  Pennsylvania   Act   19  May, 

Pr.  (N.   Y.)  273;  Gcswiler's  Est.,  1887,  P.  L.  134,  provides  for  com- 

supra;     Edinundson     v.     Wragg.  pulation    of    mileage    for    jurors, 

supra  ;  Cressey  v.   Pari<s,  75  Me.  witnesses,  etc.,  to  Ibe  county  seat 

387;  English  "v.    Williamson,    34  by  the  route  usually    traveled    in 

Kan.  212.     But  .see  contra,  Adams  going  from  the  places  where  they 

V.  Dohrmann,  63  Cal.  417.  reside,    whclher    by    public   high- 

(«)  Virginia  &  Maryland  St.  Nav.  ways,      railroads,     or     otherwise, 

Co.  V.  U.  S.,  Taney  &  Campbell's  restricting,    however,  the    mileage 

Marvland  Hep.  418.  to  the  number  of  miles  actually 

(Ij)  Cathcart    v.    Hardy,  2  M.  &  traveled.] 

S.  533.  {c)  Per  Lord  Camjibell,  Ibid. 

(<;)lHawk.  s.   15.   Comp.   23  L.  (/)  Per  Erie,  J.,  Ibid. 
J.  C.  P.   144n. 


§  395]  COMPUTATION    OF    DISTANCES.  553 

most  convenient  and  certain  mode  of  measurement,  and  that 
is  unquestionably  as  the  crow  flies  ;  a  straight  line  on  a  hori- 
zontal plane,  between  the  nearest  points  of  the  two  j)laces  or 
objects  {a). 

(a)  Lake    v.    Butler,    ubi   sup. ;  Walker,  1  Johns.  446,  28  L.  J.  Ch. 

Stokes  V.  Grissell,  14  C.  B.  678,  23  8G7;  Mouflet  v.  Cole,  L.  R.   8  Ex. 

L.  J.  141;  Jewell  v.  Stead,  6  E.   &  32.      See  Coulbert  v.  Troke,  1  Q. 

B.  850,  25  L.  J.  294;  R.  v.  Saffron  B.  D.  1, 
Walden,  9  Q.  B.   76;  Duignaa  v 


554  ASSOCIATED  WORDS.   ETC.  [§  306- 


CHAPTER  XIV. 

AssociATEn  Words. 

§  39G.  Restrictive  effect  of  Association  of  General  and  Specific  Words.. 

§  397.  Expressio  Unius  est  exclusio  alterius. 

§  400.  Noscnntur  a  Sociis. 

§  401.  Extending  Effect  of  Association  of  Words. 

§  405.  Ilule  iis  to  Generic  Words  added  to  Specific. 

§  413.  Ilule  that  Inferior  does  not  include  tSuperior. 

§  414.  Several  Words  followed  by  a  General  Expression. 

§  415.  General  Expression  in  Middle  of  Clause. 

§  416.  Reddendum  Singula  Singulis. 

§  396.  Restrictive  Eflfect  of  Association  of  General  and  Specific 
Words. — Wlieu  two  words  or  expressions  are  coupled 
together,  one  of  which  geiierically  inchides  the  other,  it  is 
obvious  that  the  more  general  term  is  used  in  a  meaning 
excluding  the  specific  one.  Though  the  words  "cows," 
"sheep,"  and  ""horses,"  for  example,  standing  alone,  com- 
prehend heifers,  lambs,  and  poniqs  respectively,  they  would 
be  understood  as  excluding  them  if  the  latter  words  were 
coupled  with  them  (a).  The  word  "land,"  whiah  in  its 
ordinary  legal  acceptation  includes  buildings  standing  upon 
it,  is  evidently  used  as  excluding  them,  when  it  is  coupled 
with  the  word  "buildings"  {b).  If  after  imposing  a  rate  on 
houses,  buildings,  works,  tenements  and  hereditaments,  an 
Act  exempted  "  land,"  this  word  would  be  restricted  to  land 
unburthened  with  houses,  buildings,  or  works  ;  which  would 
otherwise  have  been  unnecessarily  enumerated  (c).  In  the 
43  Eliz.  c.  43,  which  iniposed  a  poor  rate  on  the  occupiers 
of  "  lands,"  houses,  tithes  and  "  coal-mines,"  the  same  word 
was  similarly  limited  in  meaning  as  not  including  mines  {d). 

{a)  R.  V.   Cooke,  2  East,  P.   C.  West  Ilam,  3  E.  &  E.   144,  28  L. 

617;  R.   V.  Loom.  1   Moo.   C.    C.  J.  M.  C.  210. 

160.  (<5)  R.  V.  Midland  R.  Co.,  4E.  & 

{b)    See    ex.    gr.    Dewhurst    v.  B.  Soft. 

Fielding,  7  M.  &  Gr.  182  ;  Peto  V.  (d)  Lead  Smelting  Co.  v.  Richard- 


§  396]  ASSOCIATED  WORDS,    KTC.  555- 

The  mention  of  one  kind  of  mine  shows  that  the  Legishiture 
understood  the  word  'Mand,"  wliieh  in  law  conn)reliends  all 
mines,  as  not  including  any.  [So,  where  an  act  imposed 
certain  taxation  upon  "  every  company  or  association  what- 
ever .  .  except  foreign  insui'ances  companies,  banks 
and  savings  institutions,"  it  was  held,  in  denying  the  benefit 
of  this  exemption  to  building  associations,  as  a  species  of  sav- 
ings institutions,  that  the  legislative  sense  of  the  latter  phrase 
as  excluding  building  associations  was  clearly  established  by 
reference  toother  acts  in  pari  materia,  which,  when  intending 
to  exempt  building  associations  as  well  as  the  other  insti- 
tutions named,  expressly  mentioned  the  former,  in  addition  to 
savings  institutions  ;  as,  e.  g.^  "  and  excepting  also  banks  and 
savings  institutions,  building  associations  and  foreign  insur- 
ance companies," — the  court  observing :  "  If  the  two 
classes  were  the  same,  of  course  they  would  not  receive 
separate  designations."*  And  this  construction  was  insisted 
upon,  although,  by  it,  the  act  referred  to  was  made  to  repeal 
by  implication  an  act  passed  at  the  same  session  of  the 
Legislature,not  two  months  previously,  specifically  exempting^ 
building  associations  from  taxation.*]  In  the  same  way, 
although  the  word  "  person,"  in  the  abstract,  includes, 
artificial  persons,  that  is,  corporations  (a),  the  Statute  of  Uses 
which  enacts  that  when  a  "  person  "  stands  seized  of  tene- 
ments to  the  use  of  another  "  person  or  body  corporate,"  the 
latter  "  person  or  body "  shall  be  deemed  to  be  seized  of 
them,  is  understood  as  using  the  word  "  person "  in  the 
former  part  of  the  sentence  as  not  including  a  body  corporate. 
Consequently,  the  statute  does  not  fipply  where  the  legal 
seizin   is  in  a  corporation  (&).     The  same  construction  was 


son,  3  Burr.  1341  ;  R.   v.  Sedgley,  v.  Franklin,  3  C.  P.  D.  337.  47  L. 

2  B.  &  Ad.  65  ;  R.  v.  Cunningham,  J.  737  ;  Pbarmaceutical  Society  v. 

5  East,  478  ;  Monz;an  v.  Crawsbay,  London,    etc..     Supply    Assoc;   5 

L.  R.  5  II.  L.  304".  App.  867.     As  to  foi  eign  corpora- 

'  Bourgiirnon     Bld'g     Ass'n    v.  tlons,   Ingate  v.   Austrian   Lloyd's 

Com'th.  98' Pa.  St.  54,  65.  Co.,  4C.  B.  K  S.704;  Scott  v.  Roval 

*  See  Ibid.  Wax  Co.,  1  Q.    B.  I).  404  ;  KoVal 

(a)  2  Inst.  723  ;  [ante,  §§  87-00.]  Mail  Co.    v.  Brabain,  2  App.  381. 

See,    however.     Weavers'    Co.     v.  [Ante,  i^  89] 

Forest,    2  Stra.    1241  ;    Harrison's         {b)  Bac.    Reading  Stat.  Uses,  43,. 

Case,  1  Leach,  215  ;  St.  Leonards'  57. 


-55(5  ASSOCIATED  WuRDS,  ETC.  [§  397 

given,    for    the    same    reason,    to    the    same    word    in    the 
Mortmain  Act,  9  Geo.  2,  c.  36  {a). 

§  397.  EKpressio  Unius,  etc. — It  is  in  this  sensc  that  the 
maxim,  occasionally  misapplied  in  argument  (b),  expressio 
unius  est  exclusio  alterius,  linds  its  true  application,  [Thus, 
where  au  act  liad  given  to  courts  of  common  pleas  equit}' 
jurisdiction  in  a  particular  class  of  accounts,  and  a  sub- 
sequent act  conferred  upon  them  chancery  jurisdiction  on 
the  grounds  of  fraud,  accident,  mistake  and  account,  it  was 
held  that  the  latter  act,  though  broad  enough  to  include  all 
cases  of  account,  should  be  understood  as  relating  to  accounts 
not  within  the  former,  and  hence  as  not  working  a  repeal 
thereof.^  The  njaxim  in  question,  as  applied  to  the  con- 
struction of  statutes,  certainly  cannot  mean,  that,  where  one 
thing  is  allowed  or  named,  every  other  thing  is  forbidden  or 
excluded.  It  has,  indeed,  been  said,  that  an  exception  made 
by  the  statute  itself  excludes  all  other  exceptions  ;*  that, 
where  a  statute  specifies  the  effect  of  a  certain  provision, 
other  effects  are  to  be  held  excluded,*  as,  where  an  act  repeals 
expressly  a  particular  portion  or  section  of  another,  there 
can  be  no  implied  repeal  beyond  that  ;*  that  an  enumeration 
of  cases  in  which,  e.  g.,  interest  may  be  recovered  excludes 
such  recovery  in  others  ;'  that  a  power  given  to  national 
banks  of  loaning  money  on  personal  security,  excludes  the 
power  of  taking  any  other,  e.  g.,  mortgages  ;"  that  an  act 
affirming  jurisdiction  in  the  supreme  court  of  the  United 

(a)  Walker  v.  Richardson,  2  M.  the  common  law   rule   forbidding 

&  W.  883.  suits  between  husband  and   wile  : 

{b)  Sup.   §  .374.     See   Feather  v.  "  the  Legislature  has  undertaken 

R.,  6  B.   &  S.  257.39  L.   J.   200;  to  enumerate  the  cases  in  which  she 

Eastern  Archip.  Co.  v.  R.,   1  E.  &  may    sue,    and    all      others      are 

B.  310,  23  L.  J.   82,  per  Creswell,  oniiltcd  ;  expressio  unius  e.vclusio 

J.,  *JG  ;    London  .Joint  Stock  Bank  est    alterius,    is     a     sound     legal 

V.  M.  of  London,  1  C  P.  D.  1,  17.  maxim  :"  Mdler  v.   Miller,  44  Pa. 

=*  Dick's  App.,  106  Pa.   St.  589,  St.  170,  172. 

595.  *  Perkins  v.  Thornbur-h,  10  Cal. 

*  Brocket  v.   R.  R.   Co.,  14  Pa.  189. 

St.  241,  243;  Miller  v.  Kirkpatrick,  «  gtate  v.  Morrow.  26  Mo.  131  ; 

29  Id.   226;   Olive   Cem'y  Co.    v.  Purcell  v.    Ins.    Co.,     42   N.    Y. 

Philadelpiiia,  93  Id.    129  ;  Drvfus  Super.    Ct.    383.      Ante,    §g    203, 

V.  Bridges,  45  Miss.  247  ;   McRob-  206. 

erts  V.    Washburn,  10    Minn.    23.  •>  Watkins  v.  Wassell,  20  Ark. 

Upon  this  theory  would   secern  to  410. 

rest  the  application  of  the  maxim  *  Fowler  v.   Scully,   72  Pa.  St. 

-to  exceptions  made  by  statutes  to  456,  461. 


§398] 


ASSOCIATED  W0KD8,  ETC. 


55r 


States  is  to  be  construed  as  a  nef^ation  of  jurisdiction  in  all 
cases  not  expressly  enumerated;'  and  i!i;it  a  penal  statute 
designating  as  subject  to  its  penalties  a  particular  class  of 
persons,  exonerates  all  not  belonging  to  sucli  cla.'-s."' 

§  398.  [But,  on  the  one  hand,  these  decisions,  so  far  as 
they  are  accurate,  may  be  readily  accounted  for  on  the  familiar 
doctrines,  that,  "as  exceptions  strengthen  the  force  of  a 
general  law,  so  enumeration  weakens  as  to  things  not  enu- 
merated;"" that  an  afhrmative  may  imply  a  negative 
and  may  so  operate  where  the  intention  of  the  Legislature 
to  give  it  that  effect  is  ascertained  ;  that,  the  question  of 
a  specilied  effect  being  one  of  im})lied  intention,  an  express 
declaration  of  the  effect  an  act  is  intended  to  have  leaves 
no  room  for  any  further  implication  ;"  or  on  the  ground  of 
strict  construction  applicable  to  the  class  of  statutes  embrac- 
ing that  upon  which  the  rule  is  supposed  to  operate,  e.  g.^ 
statutes  granting  powers  to  corporations,"  or  penal  statutes.'' 
And,  on    the    other    hand,  if    there    is    such    a    rule,  it    is 


9  Exp.  McCardle,  7  Wall.  506  ; 
so  that,  a  repeal  of  such  an  act  is  a 
deuiul  of  jurisdiction  even  in  those 
cases.  See,  also,  Exp.  Yerger,  8 
Wail.  85. 

'"  State  v.  Jaeger,  6:5  Mo.  403 ; 
hence,  in  tills  case,  a  wine  grower 
was  lield  not  indictable  for  selling 
Avine  on  Ids  own  premises  without 
a  license,  or  permitting  it  to  be 
drank  at  such  place  :  lb.  See, 
also,  Niemeyer  v.  Wright,  75  Va. 
239,  post,  i^  455,  note,  that  the 
infliction  of  a  forfeiture  in  one 
aspect  is  its  exclusion  iu  any 
other  ;  and  comp.  Howell  v.  Stew- 
art, 54  Id.  400.  See,  also,  Bish., 
VVr.  L.,  §  249,  and  cases  there 
cited.  In  Haukins  v.  People,  106 
111.  628,  it  was  held,  upon  the 
principle,  exclusio  unius,  etc.,  that 
an  exclusion  of  power  to  impose  a 
tine  of  less  than  $100,  by  implica- 
tion gave  tlie  power  to  impose  a 
fine  of  mjre  than  $100,  the  lan- 
guage directing  the  imposition  of 
a  fine  of  not  less  t'.i;in  $100,  and 
fines  above  the  minimum  being 
under  the  laws  of  Illinois  review- 
able. As  cited  in  tliat  decision,  a 
statute  punishing  murder  in  the 
second  degree  with  imprisonment 


for  not  less  than  five  years  was. 
held  to  justify  a  sentence  to  im- 
prisonment for  life:  Drake  v. 
State,  o  Tex.  App.  619,  and  for 
sixty  years  :  Childs  v.  State,  2  Id. 
86.  But  in  Stinson  v.  Pond,  2 
Curt.  502,  a  statute  prohibiting  an 
act  uniler  penalty  of  not  less  than 
$100,  was  held  to  limit  tiie 
recovery  to  that  sum. 

"  See  Page  v.  Allen,  58  Pa.  St.. 
338,  346. 

'^  See  ante,  S§  199-202,  203. 

'^  See  Fowler  v.  Scully,  supra, 
citing,  to  tlie  effect,  that,  in  such, 
whatis  not  expressly  or  by  neces- 
sary implication,  given,  is  to  be 
deemed  as  expressly  withheld:  B'k 
of  U.  S.  v.  Dandridge,  12  Wheat. 
64;  Head  v.  Ins.  Co.,  2  Cranch, 
127 ;  Dartmouth  Coll.  v.  Wood- 
ward, 4  Wheat.  636  ;  B'k  of 
Augusta  V.  Earle,  13  Pet.  587  ; 
Pei-rine  v.  Canal  Co.,  9  How.  184; 
Venango  Nat.  B'k  v.  Taylor,  56 
Pa.  St.  14.  See  ante,  §  354,  post, 
§418. 

1*  See  State  v.  Jaeger,  63  Mo. 
403,  where  it  is  said  that  the  rule 
of  strict  construction  required  the 
effect  given  to   the  act  :   supra,  g. 
397.. 


55S  ASSOCIATED    WORDS,   KTC.  [^   3D8 

confessedly  liable  to  so  many  restrictions  and  exceptions  in 
its  apjjlication  as  to  be  practically  swept  away.  Indeed, 
the  extreme  caution  necessary  in  its  application  is  emphasized 
wherever  it  is  recognized  by  writers."*  Even  as  to  penal 
statutes,  it  is  said  to  be  too  general  and  subject  to  too  many 
exceptions  to  govern  the  construction."  So  the  rule  that 
the  repeal  of  particular  statutes,  or  of  a  portion  of  an  act, 
shall  exclude  the  implication  of  a  repeal  of  other  statutes  of 
the  same  purport,  or  of  other  provisions  of  the  act,"  is 
narrowed  by  the  other,  that,  if  a  statute  was  evidently 
omitted  from  the  enumeration  by  an  oversight,  it  will 
nevertheless  be  repealed,'^  and  by  the  condition  that  other 
provisions  not  expressly  repealed  be  not  absolutely  incon- 
sistent with  the  later  act,"  which  practically  obliterates  the 
former  rule;  for  such  inconsistency  is  always  requisite  in 
order  to  permit  a  repeal  by  implication.""  Nov.  conversely, 
does  the  mere  enumeration  in  one  statute  of  certain  provisions 
in  another  as  not  to  be  affected  by  it  warrant  an  inference 
that  all  other  existing  provisions  on  the  subject,  not  referred 
to  in  the  enumeration,  are  repealed.^'  And,  in  general,  if 
there  is  some  special  reason  for  mentioning  one  thing  in  a 
statute,  and  none  for  mentioning  another,  the  expression  of 
the  former  will  not  be  an  exclusion  of  the  other."  A 
statutory  provision  declaring  a  married  woman,  when  a 
party  to  an  action,  empowered  to  enter  into  any  necessary 
bond  or  undertaking,  does  not  impair  her  right  to  become  a 

'*   See  Bisb..   Wr.    L.,  §  249ii ;  right  to  impose  license  taxes  upon 

Broom,    Leg.    Max.,    p.  653.     See  insurance  companies,  was  lield  to 

tliis     caution     iusistcd     upon     in  repeal,  by  implication,   the  excmp- 

Taylor  V.  Taylor,    10  Minn.    107,  tion  enacted  by  an  act  of  1873  in  la- 

113.  vor  of   such   companies  ;  uotvvith- 

'"   State   V.    Connor,    7  La.   An.  standing  the  circumslauce   (urged 

379.  upon  argument)  that  the  act  or  1887 

'■'  Ante,  S  397.  contained  a. special  repealing  clause, 

'"  New  York  v.  11.  R.  Co.,  19  jST.  repealing     expressly     all     former 

Y.  Super.  Ct.  571;  and  see  U.  S.  v.  municipal   laws,  special   and  gene- 

Chcesemau,  3  Sawyer,  424.    Ante,  ml,  inconsistent   with,  or  supplied 

g  203.  by,    the  i^rovisious  of  the  act  of 

'^  Crosby  v.  Patch,  18  Cal.  438.  1887. 

•*'  Ante,  g§  210  etseq.    See,  also,  '■''  D^irnham  v.  Onderdouk,  41  N. 

^tna   Ins.    Co.    v.     Reading,    21  Y.  425. 

W.    N.    C.     (Pa.)    209,    where    a  '^'^    Brown    v.    Buzun,    24    Ind. 

provision  of  the  general  municipal  194. 
law  of  1887,  givingcertain  cities  the 


§  o99]  ASSOCIATKI)  AVOIIDS,  KTC.  559 

surety  in  an  undertakini^  upon  aj^peal  by  another  person  ;" 
nor  does  one  declaring  that  the  iaihire  to  give  a  certain 
prescribed  notice  shall  not  invalidate  an  election  imply  that 
every  other  prescribed  formality  must  be  rigidly  observed 
in  order  to  its  validity  f*  nor  one  prescribing  that  certain 
enumerated  acts,  such  as  filing  a  demurrer,  answer,  etc., 
shall  be  deemed  an  appearance  by  the  defendant  in  a  cause, 
that  other  acts,  e.  g.^  filing  an  afiidavit  for  a  continuance, 
should  not  be  treated  as  an  appearance."  Indeed,  the 
exceptions  would  more  than  swallow  up  the  rule  ;  for,  under 
it,  there  could  be  no  such  thing  as  implication  or  liberal 
construction  ;  nor  could  there  be  any  cumulative  remedies 
where  a  statute  undertakes  to  give  a  remedy.'" . 

§  399.  [Whether  the  expression  of  one  thing  is  to  operate 
as  the  exclusion  of  another,  is  clearly  a  mere  question  of 
intention,  to  be  gathered  from  the  statute  by  the  usual  means 
and  rales  of  interpretation.  As  an  auxiliary  rule,  the  maxim, 
expresio  unius,  etc.,  as  above  defined  becomes  a  most 
important  aid.  It  means  that  the  special  mention  of 
one  thing  indicates  that  it  was  not  intended  to  be  covered  by 
a  general  provision  which  would  otherwise  include  it.  The 
cases  given"  are  instances  of  the  application  of  the  rule  to 
mere  words.  But  it  extends  beyond  that,  and  applies  to 
clauses  as  well.  Thus,  where  a  repealing  statute  contains  a 
special  saving  clause,  the  general  saving  clause  of  the  general 
statute  has  no  application,  and  no  rights  or  i-emedies  are 
saved,  except  such  as  come  within  the  special  saving 
clause.**  Where  one  section  of  an  act,  being  a  charter  for  a 
city,  gave  a  specific  and  detailed  remedy  for  the  collection  of 
assessments  and    declared  the  provision  applicable    to    the 


2s  Woolsey  v.  Brown,  74  N.  Y.  And  see  Dow   v.  Young,  (Me.)  4 

83.     Comp.  ante,  §  374.  New  Engl.  Kep.  503,  504^  where  it 

''•*  Taylor  v.    Taylor,    10  Minn,  is  said  tliat  the  principle  ''Expres- 

107.  sio  unius  est  exclusio  alterius  sup- 

"  State  V.   McCullough,  3  Nev.  poits  the  rule."  that,  when  a  stat- 

202.     The  statute  was  construed  10  ute  creates  a  rigiit  and    declares 

mean  only  that  the  acts  enumerated  lohen  it  may  be  exercised,  it  cannot 

should  be  an  appearance  so  as  to  be    exercised   at  any  other   time, 

entitle   the  defendant  to  notice  of  See  §  433. 

further  steps  :  lb.     See,  also,  ante,  '^^  Ante,  §  396. 

§§  210-214  •'^  State   v.     Showers,    34    Kan. 

"See     Bish.,     Wr.    L.,    §249.  269. 


560  ASSOCIATED  WORDS,  ETC.  [§  399 

collection  of  those  due  and  unpaid  at  tlie  passage  of  the  act, 
and  a  subsequent  section  provided  that  "  nothing  in  said  act 
contained  shall  be  construed  to  destroy,  impair,  or  take  away 
any  right  or  remedy  acquired  or  given  by  any  act  thereby 
repealed,"  it  was  clear  that  the  broad  expressions  of  the 
latter  section  could  not  include  the  matters  specifically 
provided  for  in  the  former,  but  applied  only  to  preserve 
contract  rights  against  the  city."  It  applies,  indeed, 
wherever  an  act  contains  general  provisions  and  also  special 
ones  upon  a  subject,  which,  standing  alone,  the  general 
provisions  would  include.  In  such  cases,  the  special  pro- 
visions upon  that  particular  subject  indicate  an  intention 
that  it  is  U(jt  to  be  deemed  included  in  the  general  pro- 
vision, and  the  latter  is  held  inapplicable  to  it,  or,  as  is 
sometimes  said,  is  controlled  by  the  special  provisions. 
Where,  therefore,  there  is,  in  the  same  statute,  a  particular 
enactment,  and  also  a  general  one,  which,  in  its  most  com- 
prehensive sense,  would  include  what  is  embraced  in  the 
former,  the  particular  enactment  must  be  operative,  and  the 
general  enactment  must  be  taken  to  affect  only  such  cases 
within  its  general  language  as  are  not  within  the  provisions 
of  the  particular  enactment. ^''  It  follows,  that,  where  an 
act,  in  one  set  of  provisions,  gives  specific  and  precise 
directions  to  do  a  particular  thing,  and  in  another  set, 
prohibits,  in  general  terms,  the  doing  of  that,  which,  in  the 
broad  sense  of  the  words  used  in  the  latter,  would  cover  the 
particular  act  authorized  by  the  former,  the  more  general 
provisions  cannot  be  deemed  to  include  the  matters  embraced 
in  the  more  specific  ones.^'  And  the  same  is  true  as  to 
portions  of  an  act  treating  exclusively  and  in  detail  of  a 
nuitter  that  is  onl^'  incidentally  referred  to  in  other 
sections  of  the  statute  ;  the  former  provisions  must  prevail."'^] 

«9  State  V.  Trenton,  38  N.  J.  L.  ante,  g§  215-216. 
64.  «'  Slate  v.  Trenton,  38  N.  J.  L. 

30  Pretty  v.  Solly,  26  Bciiv.  610,  64. 
per  Romilly,     M.    R.  ;     State    v.  »'^  Long  v.  Gulp,   14  Kan.  412. 

Comm'rs  of  R.  R.  Tax'n,  Vtl  N.   ,T.  Of    course,    -where    there    is   any 

L.  228.      The  effect  of  this  rule  is  apparent      discrcpancj'^      between 

practically  that  general  legislation  general  and   particular   provisions 

on  a  particular  suliject  must  give  of  an  act,  an  harnioni/ation  of  the 

way    to  special  legislation  on  the  two  should  lirst  be  aimed  at  :  State 

same  :  State  v.  Clark,  25  Id.  54  ;  v.  Conun'rs  of  R.  R.  Tax'n,  37  N. 

State  V.   iVIonistown,  33  Id.   01  ;  J.  L.  228. 


§  400]  ASSOCIATED  WOKDS,  ETC.  561 

§  400.  Noscuntur  a  Sociis. — When  two  or  more  words,  sus- 
ceptible of  analogous  mean i no-,  are  coupled  together,  noscun- 
tur a  sociis.  [Where  tlic  language  of  the  act  itself  points  to- 
the  associated  words  as  interpreting  the  more  general  ones,, 
the  application  of  the  rule  is  obvious.  Thus,  where  an  act 
imposes  a  tax  upon  all  real  estate,  to  wit,  upon  various 
specified  kinds  of  real  estate,  and  from  such  specification 
shown  to  be  private  i)roperty,  it  is  clear  that  the  general  words- 
are  to  be  controlled  by  the  specifications,  and  that  the  broad 
phrase  embracing  all  real  estate,  nevertheless  does  not 
include  property,  e.  ^.,  of  the  United  States  within  the 
territory  to  which  the  tax  applies."'  But,  even  in  the  absence 
of  such  a  clear  manifestation  of  intent,  associated  M'ords]  are 
understood  to  be  used  in  their  cognate  sense.  Thev  take, 
as  it  were,  their  color  from  each  other  ;  that  is,  tl^  more 
general  is  restricted  to  a  sense  analogous  to  the  less  general. 
The  expression,  for  instance,  of  "  places  of  public  resort," 
assumes  a  very  different  meaning  when  coupled  with  "roads 
and  streets,"  from  that  which  it  would  have  if  the  accom- 
panying expression  was  "houses"  {a).  In  an  enactment 
respecting  houses  "  for  public  refreslnnent,  resort  and  enter- 
tainment," the  last  word  was  understood,  not  as  a  theatrical 
or  musical  or  other  similar  performance,  but  as  something 
contributing  to  the  enjoyment  of  the  "refreshment"  {h). 
An  Act  which  exempted  "  magnates  and  noblemen  "  from 
tithes,  was  held,  on  this  ground,  not  to  extend  to  an  ecclesias- 
tical magnate,  such  as  a  dean,  but  to  apply  only  to  magnates 
of  a  "  noble"  kind  (c).  In  the  same  way,  the  17th  section 
of  the  Statute  of  Frauds,  which  requires  that  contracts  for 
the  sale  of  "goods,  wares,  and  merchandise"  for  ten  pounds 
or  upwards,  shall  be  in  writing,  and  the  Factors  Act,  5  &  6 

33  U.  S.  V.  Weise,  2   Wall.  Jr.  B.  423.      See,  also,  R.  v.   Cliaiies- 

72.  woitii,  2  L.  M.  &  P.  117;   Wilsoa 

{a)  Soe  e.\.  gr.  R.  v.  Joues,  7  Ex.  v.  Halifax,  L.  R.  3  Ex.  114. 
580,    21  L.  J.  M.   C.    113  :  R.  v.  {b)  Umr  v.  Keay,  L.  R.  10  Q.  B. 

Brown.  Id.  IIG,  ami   17  (.}.  B.  833  ;  594.     See  Tavlor  v.  Oram,  1  II.  & 

Exp.    Fiee*«tone,   25   L.  J.    31.    C.  C.  370 ;  Howes  v.  Iiilaud  Revenue 

121  ;    Davys   v.    Don-Ins,  4  H.  &  Bd.,  1  Ex.  D.  385;  R.  v.  Tucker,  3; 

N.  180,  28  L.  J.   M.  C.  193  ;  Sewell  Q.  B.  D.  417. 
V.  Taylor,  2!)  Id.  50,  7  C.  B   N.  S.  (c)  Warden  v. Dean  of  St.  Paul's 

1()0  ;  Case  V.  Storev,  L.   R.  4  Ex.  4  Price,  65. 
319 :  Skinner  v.  U.sher,  L.  R.  7  Q. 

36 


562 


ASSOCIATED    WOKDS,    ETC. 


[§  401 


Yict.  c.  39,  wliicrli  protects  certain  dealings  of  agents 
entrusted  with  the  documents  of  title  of  "goods  and  mer- 
chandise," do  not  extend  to  shares  or  stock  in  companies  («), 
or  to  the  certificates  of  tlieni  (/>).  In  each  of  these  cases,  the 
meaning  of  the  more  general  word  is  in  a  measure  derived 
from,  or  at  least  limited  by,  the  more  specific  one  with  which 
it  is  associated.  The  Bankrupt  Act,  which  makes  a  fraudu- 
lent "  gift^  delivery,  or  transfer"  of  property  an  act  of  bank- 
ruptc}',  includes  only  such  deliveries  or  transfers  as  are  of 
the  nature  of  a  gift ;  that  is,  such  only  as  alter  the  ownership 
of  the  property  ;  but  it  does  not  include  a  delivery  to  a  bailee 
for  safety  custody  (c),  [So,  where  an  act  gave  a  lien  to 
mechanics  upon  "  all  improvements,  engines,  pumps,  machin- 
ery, screens  and  fixtures,  erected  or  put  by  tenants  of  leased 
estates  on  land  of  others,"  providing  that  the  lien  thereby 
created  should  extend  only  to  the  interest  of  the  tenant,  and 
to  the  "  imjirovements,  engines,  pumps,  machinery,  screens 
and  fixtures  erected,  repaired  or  put  in  "  by  such  mechanics, 
it  was  held,  tliat,  although  the  word  "■  in)pi-ovements"  was 
large  enough,  under  ordinaiy  circumstances,  to  include  a 
house  or  private  dwelling,  it  was  manifest,  by  its  connection, 
in  the  act,  wnth  the  words  "  engines,  pumps,"  etc.,  that  the 
word  w'as  not  intended  to  authorize  the  creation  of  liens 
upon  ordinary  houses  or  dwellings  of  tenants  independently 
of  the  works  indicated  by  the  other  expressions  used  in  con- 
nection w'ith  the  word  "improvements."**] 

§  401.  The  receipt  of  "parochial  relief  or  other  alms," 
which  disqualifies  for  the  municipal  franchise  (5  &  0  Will. 
4,  c.  76,  s.  D),  is  confined  to  other  paro(;liial  alms,  and  does 


(a)  Tempest  v.  Kilner,  3  C.  B. 
249  ;  Bowlbv  v.  Bell,  Id.  284 ; 
Humble  V.  Mitchell,  11  A.  &  E. 
205  ;  ilesclliue  v.  Siggers,  1  Ex. 
856. 

(b)  Freeman  v.  Appleyard,  32  L. 
J.  Ex.  175.  See  .ludic  A.  1H75, 
Ord.  52,  r.  2.  and  IJartliolomew  v. 
Freeman,  3  C.  P.  U.  310. 

(c)  Cotton    V.    James,    Moo.    & 


the  refusal  of  the  court  of  common 
pleas  to  open  judgments  entered  by 
virtue  of  a  "  warnrnt  of  attorney  of 
on  judgment  note,"  and  i.olduig  it 
innpi)licable  to  the  (;ase  of  a  judg- 
ment ctiut'esscd  in  an  amicable 
action  of  ejectment,  the  Court  said: 
"The  use  of  tlio  words  'warrant 
of  attorney  ©r  judgment  note'  .  . 
makes  it  donbtful  at  icjist,  wliether 


Mai.  273  ;  Bitt  v.  Beeston,  L.  U.  4      tiie    ])rovisi()ns  of   siud   act    were 
Ex.  151).  intended  to  apply  to  any  but  money 

s-'Schenlev's  App.,  70Pa.  St.  98.  iudgments:"  Liinberi's  App.,  21 
So,  in  cans'trulng  the  Pa.  Act,  4  W.  N.  C.  (Pa.)  20,  Reasserted  in 
.\pr.  1877,  giving  an  appeal   from      Swartz's  App.  (Pa.'  11  Ceutr.  Hep. 

681. 


§  401]  ASSOCIATED   WORDS,  ETC.  '         T'CS 

not  include  alms  received  from  a  charitable  institution  (<z). 
An  Act  (23  &  24  Vict.)  whicli  prohibits  the  sale  of  articles, 
as  "  pure  or  unadulterated,"  which  are  in  fact  adulterated  or 
not  pure,  would  be  understood  to  use  the  latter  expression 
-as  closely  analogous  to  the  former  ;  so  that  milk  from  which 
the  cream  had  been  extracted  would  })robably  not  fall 
within  the  designation  of  "not  pure."  (b).  In  the  Thames 
Conservancy  Act,  which,  after  empowering  the  conservators 
to  license  the  construction  of  jetties  in  the  river,  provided 
that  this  should  not  cake  away  any  "right,"  claim,  privilege, 
franchise,  or  immunity  to  which  the  occupiers  of  land  on 
the  banks  were  entitled,  the  word  "  right,"  was  limited  by 
the  associated  words  to  vested  rights  of  property,  and  did 
not  include  the  right  of  navigation  which  the  occupiers 
enjoyed  not  otherwise  than  the  public  generally  (c).  In  the 
first  section  of  the  Prescription  Act,  the  expression  "any 
right  of  common"  is  similarly  restricted  by  the  succeeding 
words,  "  or  other  profit  or  benefit  to  be  taken  and  enjoyed 
from  or  upon  any  land,"  so  as  not  to  include  rights  in  gross, 
but  only  those  usual  rights  of  common  and  profit  a  prendre 
which  are  in  some  M'ay  appurtenant  to  the  land,  and  limited 
to  the  wants  of  a  dominant  tenement  (d).  And  in  the 
second  section  of  the  same  Act,  relating  to  claims  by  custom, 
prescription  or  grant,  "to  any  way  or  other  easement,"  the 

(a)  H.  V.  Lichfield,  2  Q.  B.  693.  Johnston  v.  Hogg,  L.  R.  10  Q.  B. 
See  the  cases  collected  in  Harrison  D.  433.  See,  also,  Davidson  v 
V.  Carter,  2  C.  P.  D.  26.  [In  Bnrnand,  L.  R.  4  C.  P.  120  ;  Ash- 
Goidd  V.  Sub-District,  7  Minn.  bury  Carriag-^  Co.  v.  Riche,  L.  R. 
203,  a  saving  of  "contract,  obliga-  7  II.  L.  653;  Chartered  Merc, 
tion,  righf,  or  lien'"  wa.s  held  to  Bank  v.  Wilson,  3  E.x.  D.  108; 
include  a  claim  or  action  ex  delicto,  Woodvi'ard  v.  London  &  N.  W. 
it  being  observed  that  rir/Jiis  would  R.  Co.,  Id.  121  ;  "Williams  v.  Ellis, 
arise  from  obligations  and  con-  5  Q.  B.  D.  175.  [But  in  an 
tracts,  and  would  not  probablj^  appointment  of  a  person  by  an 
extend  beyond  them,  whilst  jy^//^  insurance  company  to  act  as  "  agent 
would  seem  to  have  a  larger  sense  or  surveyor,"  the  coui't  refused  to 
and  indicate  something  more  than  limit  the  word  "agent"  by  the 
surplusage.]  term  "surveyor  :"  Lycoming^  etc., 

(b)  The  ordinary  marine  policy  Ins.  Co.  v.  Woodwoi-th,  83  Pa.  St. 
which    insures    against    arrest   of  223.] 

"kings,  princes,  and  people,"  (c)  20  &  21  Vic.  c.  cxlvii.  s.  53;- 
refers,  under  the  last  word,  not  to  Kearns  v.  Cordwainers'  Co.,  6  C. 
any  collection  of  persons,  but  to  B.  JS.  S.  338,  28  L.  J.  285. 
the  governing  j)o\ver  of  a  country  ((/)  2  &  3  W.  4.  c.  71  ;  Shuttle- 
not  included  in  the  other  terms  worth  v.  Le  Fleming,  19  C.  B.  N. 
with  which  it  is  associated:  Nesbitt  S.  687,  34  L.  J.  309. 
V.  Lushington,  4  T.  R.  783.      See 


5G4  ASSOCIATED  WORDS,  ETC.  [§   i02.' 

only  easements  included  ai-e  those  analogous  to  a  right  of 
way,  that  is,  rights  of  utility  and  benetit,  and  not  niercly  of 
recreation  and  amusement  (a).  The  County  Courts  Act,  in 
making  a  jjerson  subject  to  the  jurisdiction  of  the  Court  of 
the  disti'ict  within  which  he  "dwells  or  carries  on  his  busi- 
ness," included  under  the  latter  expression  only  a  personal 
carrying  on  of  business,  not  cases  where  it  was  carried  on 
altogether  by  an  agent  (h).  The  24  Vict.  c.  10,  s.  6,  which, 
gives  the  Admiralty  jurisdiction,  when  the  ship-owner  is  not 
domiciled  in  England,  over  any  claim  of  the  owner  of  goods 
carried  into  any  English  port,  for  danuige  done  to  them  by 
tlie  negligence  or  misconduct  of,  or  for  "  any  breach  of  duty 
or  of  contract"  by  the  ship-owner,  master,  or  crew,  seems 
confined  to  breaches  of  duty  oi*  contract  having  some  analogy 
to  what  is  provided  in  the  earlier  part  of  the  section  ;  and 
was  therefore  held  not  to  apply  to  the  wi-ongful  refusal  of 
H  master  to  take  a  cargo  to  a  poi't  abroad  (r). 

§  402.  On  the  same  principle,  an  Act  which  prohibits  the 
"  taking  or  destroying"  tiie  spawn  of  lish  would  not  include 
a  "taking"  of  spawn  for  the  ]iuri)ose  of  removing  it  to 
another  bed  ;  for  the  word  "  destroying,"  with  which  "tak- 
ing" is  associated,  indicates  that  the  taking  which  is])rohibi- 
ted  is  dishonest  or  mischievous  (d).  And  in  an  Act  which 
made  it  penal  to  "  take  or  kill  "  lish  without  the  leave  of  the- 
owners  of  the  fishery,  the  same  Ivind  of  "  taking"  was  simi- 
larly held  to  have  been  intended  (<?).  An  Act  wdiich  pro- 
hibits the  "  having  or  keeping  "  gunpowder,  does  not  apply 
to  a  person  who  "  has  ^'  gunpowder  for  a  merely  temporary 
l)uri)osc,  as  a  carrier,  the  kind  of  "having"  intended  by  the 
Act  being  explained  by  the  word  "  kee})ing,"  with  whiidi  it 
is  associated  (_/).  So,  where  an  Act  punishes  the  "  having  or 
conveying "  anything  suspected  of  being  stolen  and  not 
satisfactorily'  accounted  for,  the  former  expression  is  limited 

(rt)2&3W.  4,  c.    71,   Monnsey  (d)  3  J:ic.   1,  c.   IC  ;  Bridger   v. 

V.  Imniy,  3  II.   &  C.  48(>,  34  L.  J.  Richardson.  3  M.  &  S.  568. 

53.  5().      Seo  Webb  v.  Bird,  10  C.  (r)  23  &  33  Car.   3.  c.  35  ;  R.  v. 

B.  36S  ;  13  C.  B.  841.  Maliinsoii,  3  Bm  r.  679. 

(/>)  Minor  v.   London  &  N.   W.  (/')  13   Goo.   3,   c.  61  ;   Biirus  v. 

R.  Co..  36  L.  J.  C.  P.  39;  Shiels  v.  Miicbdl.    3  B.   &  S.  533,  31"  L.  J. 

Rait,  7  C.  B.  116.  M.  C.  631  ;    R.   v.  Stiiigncli,  L.  R. 

(c)  The  Dannebrog,   L.   R.   4  A.  1  Q.  B.  931. 
<k  E.  386. 


;§  403]  ASSOCIATED   WORDS,  KTC.  5G5 

by  tho  liittcr,  and  docs  not,  therefore,  apply  to  the  possession 
of  a  lionse  {a).  An  Act  which  made  it  felony  to  "  cast  away  or 
■destroy"  a  ship  was  held  not  to  apply  to  a  case  where  the  ship 
was  run  aground  or  stranded  upon  a  ro/k,  but  was  afterwards 
got  off  in  a  condition  capable  of  being  refitted  (i).  This  rule 
was  applied  to  the  construction  of  the  repealed  Act,  1  Vict. 
c.  85,  which  made  it  felon}'  "  to  shoot,  cut,  stab,  or  wound  ;" 
for  the  latter  term  was  held  to  be  restricted,  by  the  verbs 
which  preceded  it,  to  injuries  inflicted  by  an  instrument ; 
.and  consequently  to  bite  off  a  finger  or  a  nose,  or  to  burn  the 
face  with  vitriol,  was  not  to  wound  within  the  meaning  of 
the  Act  (c). 

§  403.  One  phrase  or  clause,  in  the  same  way,  sometimes 
materially  limits  the  effect  of  another  with  which  it  is  simi- 
larly associated.  Thus,  an  Act  which  disgaveled  lands  '"  to 
all  intents  and  purposes,"  and  then  went  on  to  make  them 
"descendible  as  lands  at  common  law,"  was  held  to  disgavel 
them  oidy  for  the  purposes  of  descent  {d).  [So,  where  an 
act  relating  to  landlord  and  tenant  proceedings,  after  giving 
iustices  of  the  peace  certain  powers,  provided  that  no  appeal 
should  lie  in  the  case  of  rent,  but  went  on  to  add  that  the 
remedy  by  replevin  shall  remain  as  heretofore,  it  was  clear 
that  the  denial  of  an  appeal  related  to  the  tenant  only.'*] 
The  section  of  the  Annuity  Act,  17  Geo.  3,  c.  26,  which 

(a)  2  &  3  Vict.  c.  71  ;  Hadley  v.  503.     An    act    giving  a   right    of 

Perks.  L.  R.  1  Q.  B.  444.  action  against  the  grantor  in  a  deed 

(6)  Do  Londo's  Case,  2  East,  P.  to  an  assignee  of  the  grantee,  for 

C.  1098.  bieacli   of  a  covenant   against  in- 

{c)  R.  V.  Harris,  7  C.   &  P.  446  ;  curabrances,      where     the    iucum- 

R.  V.  Stevens,  1  Moo.   C.  C.  409  ;  brance  "  api)cars  of  record."  was 

R.  V.  j\Iurrow,  Id.    456  ;  Jenning's  held  to  apply  only  where  the  in- 

Case,  2  Lew.  i;30.       [See  for  other  ctimbrance   was  of   record   in  the 

illustrations   of   this   construction,  registry  of  deeds,  and   a   lieu  for 

.ante,  ^  303.]  unpaid  taxes,    appearing  only    in 

{d)  'Wiseman  v.  Cotton,  1  Lev.  the  records  of  a  city  or  town,  was 

80.  held  not  within  the  statute  :  Car- 

35  Hilke  v.  Eisenbeis,  104  Pa.  St.  ter  v.  Peck,  138  Mass.  439.      And 

514.       Similarly,      an     act      that  see   Lane    v.    Harris,   16   Ga.    217, 

required   judgnients,  ?rc«7«i'^rt«cfis,  where  an  act  providing  "  that  no 

sci.    fa.'s    and    executions    to    be  person  shall  be  permitted  to  deny 

entered  in  a  "  book  to  he  called  the  any    bond,  bill,  .  .  unless  he,  .   . 

judgment  index,  "  in  order  to  con-  shall    make    atlidavit,"    etc.,    was 

stitute  a  lien,  was  held   clearly  to  held  to  apply  only  where  the  exe- 

refer  to  recognizances  in  the  com-  cution  of  the  instrument  is  alleged 

mon   pleas,    not    in    the   orphans'  to  be  the  act  of  the  party  tiling  the 

vcourt  :    Holman's    App.,    106  Id.  answer,  or  adopted  by  liim. 


566  ASSOCIATED  WOKDS,    ETC.  [§  404r 

excepts  from  the  general  provisions  of  the  enactment  any 
"  vohintarj  annuity  granted  witiiout  regard  to  pecuniar}r 
consideration,"  was  constrned  as  using  tlie  word  "  vohintary,"' 
not  in  its  usual  legal  sense,  as  witiiout  consideration,  but  as 
without  pecuniary  consideration  («).  [A  notable  instance  of 
this  operation  of  associated  words  occurred  in  the  construction 
of  the  Pennsylvania  act  of  22  April,  1856,  which  declared 
that  "  no  right  of  entry  shall  accrue,  or  actions  be  maintained 
fur  a  specific  performance  of  any  contract  for  the  sale  of  any 
real  estate,  or  for  damages  for  non-compliance  with  any  such 
contract,  or  to  enforce  any  equity  of  redemption,  after- 
re-entry  made  for  any  condition  hroken,  or  to  enforce  any 
implied  or  resulting  trust  as  to  realty,  but  within  five  years- 
after  such  contract  was  made  or  such  equity  or  trust  accrued,. 
with  the  right  to  entry,  unless  such  contract  shall  give  a  longer 
time  for  its  performance,  or  there  has  been,  in  part,  a  sub- 
stantial performance,  or  such  contract,  equity  of  redemption, 
or  trust,  shall  have  been  acknowledged,  by  writing,  to  subsist, 
by  the  party  charged  therewith,  within  the  same  period,'^ 
etc.  It  was  held  that  the  construction  of  the  phrase,, 
"equity  of  redemption," — a  phrase  familiarly,  in  legal  par- 
lance, applied  to  a  mortgagor's  right  in  the  premises  conveyed 
by  him  to  the  mortgagee  as  security  for  a  debt, — must  be 
construed  in  the  light  of  the  associated  words  "  after  re-entry 
made  for  any  condition  broken  ; "  that,  therefore,  it  could 
not  mean  a  mortgagor's  equity  of  redemption,  but  had  refer- 
ence to  cases  such  as  those  arising  upon  tlie  rights  of  a 
purchaser  under  a  ground-rent  deed,  after  re-entry  by  the 
grantor  for  non-payment  of  rent ;  and  consequently,  tliat  the- 
clause  did  not,  in  any  way,  affect  the  rights  of  mortgagors, 
nor  make  any  alteration  in  the  rule  theretofore  existing,  which 
allowed  a  deed  absolute  on  its  face  to  be  shown  by  parol  tO' 
be  a  mortgage/' 

§  404-.  Extending  Effect  of  Association  of  Words.— [On  the 
other  hand,  the  effect  of  associated  words  may  also,  some- 
times, be  an  extending  one.     One  section  of  a  certain  statute 

(a)  Crespigny  v.    Wittenonm,  4     E.  &  B.  374. 
T.  R.  790.     Sec  Blake  v.  Attersoll,  '^^  Ilurpcr's  App.,  64  Pa.  St.  315  \. 

2  B.  &  C.  875  ;   Evatt  v.    Hunt,  2      Balleutinc  v.  White,  77  Id.  20. 


§  405]  ASSOCIATED  "WOKDS,    ETC.  567 

imposed  a  specified  tax  upon  tonnage  upon  every  railroad, 
steamboat,  canal  and  slackwater  navigation  company',  and  all 
other  companies  upon  whose  works  freight  might  be  trans- 
ported, whether  the  compensation  received  by  it  be  for  trans- 
portation, transportation  and  tolls,  or  tolls  only.  The  next 
section  imposed,  '*  in  addition  to  "  such  tax, a  tax  upon  gross 
receipts  "'upon  every  railioad,  canal  and  transportation  com- 
pany." It  was  held  that  the  phrase  '•  transpurtatioii  com- 
pany" in  the  latter  section  took  its  meaning  from  the  first 
section,  with  whicli  it  was  thus  associated,  and  meant  all 
companies  "  upon  whose  works  freight  may  bo  transported," 
etc.,  and  thus  included  a  corporation  authorized  to  make 
slackwater  navigation,  but  prohibited  from  engaging  in 
transportation, — the  phrase  "  transportation  company  "  being 
treated  as  "  nomen  generalissimum,"  '•  nomen  collectivum," 
taking  its  meaning  from  the  more  particular  designation  in 
the  section  to  which  it  stood  ''  in  immediate  juxtaposition.""] 

§  405.  Rule  as  to  Generic  Words  Added  to  Specific. — It  is, 
however,  the  use  of  a  general  word  following  («)  one  or  more 
less  general  terms  ejusdem  generis,  which  affords  the  most 
frequent  illustration  of  the  rule  under  considerntion.  Generi 
per  speciem  derogatur.  In  the  abstract,  general  words,  like 
all  others,  receive  their  full  and  natural  meaning.  If  a 
right  of  hunting,  shooting,  and  fishing  is  granted,  all  things 
generally  hunted,  shot,  and  fished  are  included  (b).  The  3 
&  4  Will,  4,  c.  42,  s.  3,  which  limits  the  time  for  suing 
"upon  any  bond  or  other  specialty,"  comprehends  under  the 
last  expression  every  kind  of  specialty,  including  a  statute 
(c).  [So,  where  an  act  enabled  married  women  to  be  sued, 
jointly  with  their  husbands,  upon  any  note,  bill  of  exchange, 
single  bill,  bond,  contract  or  agreement  executed  by  such 
married  woman  jointly  with  her  husband,  it  was  held  that  a 
statutory  bond  required  of  a  collector  of  state  taxes,  executed 
by  him  as  principal  and  by  his  wife,  another  married  wonum 
and  her  husband  as  sureties,  was  included.'*]     In  such  cases, 

^•>    :VIonon£?abela    Nav.    Co.    v.  K  S.  2G4,  34  L.  J.  261. 
Com'lli.  CO  Pa.  St.  81,  83.  (c)   Cork  &  Bamlon  R.    Co.  v. 

(d)  Not  preceding  ;   see  ex.  gr.  Goode,  13  C.  B.  83(!. 
King  V.  George,  5  Cli.  D.  G27.  ^s  gniith  v.  State   (Md.")  5  Centr. 

{b)  Jeilrey.s  v.    Evaus,  19  C.  B.  Kep.  607. 


5t)8  ASSOCIATKI)  WOUDS,   KTC.  [^  405 

the  frencral  principle  aj)plies,  that  the  terms  are  to  receive 
their  phiin  and  ordinary  meaning;  and  Courts  are  not  at 
liberty  to  impose  on  them  limitations  not  called  for  by  the 
sense,  or  the  objects  or  mischief  of  the  enactment  {a).  But 
the  general  word  which  follows  particular  and  specific  words 
of  the  same  nature  as  itself  takes  its  meaning  from  them, 
and  is  presumed  to  be  restricted  to  the  same  genus  as  those 
words  {b)\  or,  in  other  words,  as  comprehending  only  things 
of  the  same  kind  as  those  designated  by  them  ;  unless,  of 
course,  there  be  something  to  show  that  a  wider  sense  was 
intended. 

Thus,  the  Sunday  xYct,  29  Car.  2,  c.  7,  which  enacts  that 
*'no  tradesman,  artificer,  workman,  laborer,  or  other  person 
whatsoever,  shall  do  or  exercise  any  labor,  business,  or  work 
of  their  ordiiuiry  callings  upon  the  Lord's  Day,"  has  been 
held  not  to  include  a  coach  proprietor  (c),  or  a  farmer  {d), 
or,  no  doubt,  an  attorney  {e)\  the  word  "  person "  being 
confined  to  those  of  callings  like  those  specified  by  the  pre- 
ceding words.  For  a  similar  reason,  the  20  Geo.  2,  c.  19, 
which  empowers  justices  to  determine  differences  between 
nuisters  and  "  servants  in  husbandry,  artificers,  handicrafts- 
men," and  persons  in  some  other  specific  employments,  and 
"  all  othci-  laborers,"  does  not  include  a  domestic  servant 
{fy  or  a  mail  employed  to  take  care  of  goods  seized  under  a 
writ  (<7)  ;  for  though  in  the  abstract  they  may  be  "  laborers," 
their  em))loyments  have  no  analogy  with  those  specified  (A). 

(a)  Per     Cur.    in     U.     S.     v.  {d)   R.  v.   Cleworth,  4  B.  &    S. 
Coombes,  12  Peters,  80.                        927  ;   K.  v.  Silvester,  33  L.   J.  M. 

(b)  See  per  Willes,     J.,  in    Fen-      C.  79,  8.  V. 

wick  V.   Schmaltz,  L.  K.  3  C.  P.  {e)  Peale  v.  Dicken,   1  C.   M.  & 

315.       [T'lis    rule    is    said    to   be  R.  422. 

especially  foicible  iu  the  iiiterpre-  (/)  Kitchen  v.  Shaw,  6  A.  &  E. 

tatiOQ   o"f   acts   falling   under    the  729.       Conip.  Exp.  Hughes,  23  L. 

rule    of    strict    coiistnicUon  :    lie  J.  M.  C.  138  ;    Davies  v.  Berwick, 

Swigert,  119  111.  83.      An  act  con-  3  E.  &  E.  549,  30  L.  J.  M.  C.  84. 

ferring   on   .Tuslices   of  the  Peace  (r/)  Braniwell    v.    Peuneck,  7  B. 

civil  jurisdiction  in  eases  of  "torts,  &  C.  530. 

trespasses  and  other  injuries,"  was  (Ji)  It  would  include,  however,  a 

held  not  to  include  libel  and  slau-  man   who  contracted    to   uork  by 

der  :  Engelking  v.  Von  Wamel,  20  the  piece,  not  by  the  day,  provided 

Te.x.  409.      See  Ramsey  v.  Gould,  the  relation  of  master  and  .servant 

57  Barb.   (N.  Y.)  398,  infra,  t^  407.  existed:  Lowtherv.  Piaducr.  8East, 

But  see  post,  §  408,  nf)te.]  113  ;   Comp.  Lancaster  v.  Greaves, 

(r.)   Sandiman  V.    Breacli,7B.  &  4  B.  &   C.  028;   Exp.   Johnson,  7 

<J   96.  Dowl.  702  ;    R.   v.   Hey  wood,  1  M. 


§  405]  ASSOCIATKr)    WORDS,   ETC.  5GD 

[So,  where  an  act  g-ave  a  lien  for  wages  "  clue  for  labor  and 
services  rendered  by  any  miner,  mechanic,  laborer  or  clerk, 
from  any  person  .  .  employing  clerks,  miners,  mechanics 
or  laborers,  either  as  owners  .  .  of  any  works,  mines, 
manufactory  or  other  business  where  clerks,  miners,  or 
mechanics  are  employed,"  etc.,  it  was  held  not  to  extend  to 
wages  of  persons  employed  about  an  hotel.""]  The  Metro- 
politan Building  Act  of  1855,  which  entitles  a  district 
surveyor  "or  other  person,"  to  a  month's  notice  of  action 
for  anything  done  under  the  Act,  was  held,  on  this  princi- 
ple, not  to  give  that  privilege  to  every  person  sued,  but  to 
give  it  only  to  persons  ejusdem  generis  with  a  district  sur- 
veyor; that  is,  having  an  ofHcial  duty  (a).  An  Act  which 
made  it  felony  to  break  and  enter  into  a  "dwelling,  shop, 
warehouse,  or  counting-house,"  would  not  include  a  work- 
shop, but  only  that  kind  of  shop  which  had  some  analogy 
with  a  warehouse  ;  that  is,  one  for  the  sale  of  goods  (b).  In 
an  Act  imposing  a  penalty  on  unqualified  persons  navigating 
"  any  wherry,  lighter,  or  other  craft,"  the  last  word  would 
include  only  vessels  of  the  same  kind  as  wherries  and  light- 
ers, not  steam  tugs  which  carried  neither  passengers  nor 
goods  (c).  But  the  same  word  would  be  more  compi-ehen- 
sive  if  it  had  followed  "  boats  and  vessels  "  {d).  A  prohibi- 
tion against  deducting  from  an  artificer's  wages  any  part  of 
them   "for    frame    rent    and    standing,  or    other    charges," 

&  S.    G24.      See,    also,  Gordon  v.  or  iuclosurc,"  it  was  held  that  tbe 

Jennings,  9  Q.   B.    D.  45.  51  L.  J.  phrase      "  or    other     erection    or 

417.     [Comp.  ante.  ^  99.]  enclosure  "  should  be  limited  to  the 

^^Allen's  App. ,  81*  Pa.  St.  (83  S.)  same  class    of    objects    as    those 

302  ;  Sullivan's  App..  77  Id.  107.  designated  by  the  preceding  speci- 

(a)  William;;  v.  Golding,  L.  R.  1  fie  terms  ;  and  that  consequently 

C.  P.  09.     Comp.  Newton  V.  Ellis,  (the     word      "building"      being 

1  E.  &  B.  115.  limited  to  those  structures,  which, 

{b)    R.   V.   Saunders,   9  C.  &  P.  at  the  time   of   the  enactment   of 

79.       [In     People     v.      Richards,  the   code,    were   included    in    the 

(N.  Y.)  11  Ccntr.   Rep.  75,  under  common  law  and  statutory  detini- 

the  New  York  Penal  Code  (§§  498  tions  of  burglary),   breaking  into  a 

and  504)  declaring  guilty  of  bur-  vault,    used    exclusively    for     the 

glary      any     person,    who,     with  interment   of   the   dead,    was    not 

intent  to  commit  a  crime  therein,  burglary  under  said  .sections.] 

breaks  and  enters  a  building,  and  (c)  Read  v.   Ingham,   3  E.   &  B. 

enacts  that  the  term   "  buil'tiing"  889,  23  L.  J.  M."C.  ISti. 

includes    "a  railway  cur,    vessel,  ((^  Ti.sdell  v.  Coombe,  7  A.  it  E. 

booth,  tent,  sliop  or  other  erection  788. 


j7t)  ASSOCIATED    WORDS,  ETC.  [§  406- 

would  not  iiicliule,  uiuler  the  last  word,  a  line  incurred  for 
bread)  of  agreement  {a). 

§  406.  The  11  Geo.  2,  c.  19,  which  authorizes  the  distress 
for  i-ent  of  "  corn,  grass,  or  other  product"  growing  on  the 
demised  lands,  includes  only  products  similar  to  grass  and 
com  ;  but  not  young    trees,  which,  though    nnquestional)ly 
pl-oducts  of  the  land,  are  of  a  difEerent  character  from  the 
products  specified  by  the  earlier  terms  {h).     For  the  same 
reason,  young  trees  are   not   included    in    the    Act    which 
punishes  the  stealing  of  "  any  plant,  root,  fruit,  or  vegetable 
jiroduction    growing  in  a  garden,  orchard,  nursery-ground, 
hot-house  or  conservatory  "  (c).     [And  for  reasons  entirely 
similar,  in  an  act  enabling  the  owner  of  realty  to  maintain 
an    action    of   replevin   to   recover  timber,  lumber,  coal,  or 
other  property  severed  from  the  realty,  notwithstanding  the 
title  to    the   land    may  be   in    dispute,  the    phrase    "  other 
property  ''  includes  only  things  of  the  same  kind  as  timber, 
lumber,  or  coal, — e.  g.,  slate,  marble,  zinc  ore,  iron  ore,  and 
all  other  forms  of  minerals,  building  stone  and  fixtures,  and 
machinery  of   every  description    permanently  fixed    to   the 
realty,  but  not  growing  crops."]     An  Act  which  prohibited 
playing  or  betting  in  the  streets  "  at  or  with  any  table  or 
instrument  of  gaming,"  would  not  include,  under  the  last 
general  words,  half-pence  used  for  tossing  for  money  (cT).     A 
by-law  which   imposed  a  penalty  for  causing  an  obstruction 
in  the  street  in  various  specified  ways,  all   of  a  temporary 
character,  or  otherwise  causing  or  committing   "  any  other 
obstruction,  nuisance,  or  annoyance  "  in  any  of  the  streets, 
was  held  not  to  include,  under  the  latter  words,  any  obstruc- 

(rt)  Willis  V.  Thorp,  L.  K.  10  Q.      funds,    credits      and      property." 

B.  388.  Compare,  also,  Thames,  etc.,  Ins. 
\l>)  Clark  V.  Gaskarth,  8  Taunt.      Co.   v.   Hamilton,    L.  11.  13  App. 

431.  Cas.  484,  as  to  a  policy  of  insur- 
(c)  R.   V.  Ilodtres,  1  Moo.  &  M.  ance  covcrin<?   perils  of  the  sea, 
341.        See    Radnorshire    Bd.    v.  specially  naming  many,  and  "  all- 
Evans,  3  B.  &  S.  400,  32  L.  J.  M.  other    perils,    losses    and    misfor- 

C.  100  ;  Smith  v.  Baruham,  1  Ex.  tunes,"  etc. 

D  419.  (f?)  Watson  v.  Martin,  34  L.  J. 

'^0  Renick  v.  Boyd,  99  Pa.   St.  M.    C.   50,    rectifiid  by  31   &    32 

555.     And  see  People  v.   N.  Y.,  Vict.  c.  52,  s.  3  ;  Hirst   v.  Moles- 

ete.,  R.  R.  Co.,  84  N.  Y.  565,  as  to  bury,  L.  R.  G  Q.  B.  130.      But  see- 

construction   of  the  word  "prop-  R.  v.  O'Connor.  15  Cox,  3. 
erty,"    in    the     phrase     "mon(>y, 


§  407]  ASSOCIATED  WORDS,  ETC.  571 

tion  which  was  not  of  a  temporary  character  (a).  The 
enactment  which  prohibited  the  establishment^  withont 
license,  of  ''  the  bnsiness  of  a  blood  boiler,  bone  boiler,  fell- 
monger,  slaughterer  of  cattle,  horses,  or  animals  of  any 
desci'iption,  soap  boiler,  tallow  meltcr,  tripe  boiler,  or  other 
noxious  or  offensive  "bnsiness,  trade,  or  manufacture,"  was 
held  not  to  include  under  tlie  final  general  terms  any  employ- 
ments not  connected,  as  all  the  specified  trades  were,  with 
animal  matter ;  and  so  did  not  reach  brick  making  (b).  An 
Act  which  gives  a  vote  to  the  occupier  of  a  "  house,  ware- 
house, connting-house,  shop,  or  other  building,"  includes,  in 
the  latter  term,  only  buildings  which,  like  those  specifically 
mentioned,  are  of  some  permanence  and  utility,  and  contri- 
bute to  the  beneficial  occupation  of  the  land,  increasing 
thereby  its  value  (c).  The  words  "  tenements  and  heredita- 
ments," which,  in  their  technical  sense,  embrace  not  only 
every  species  of  right  conne.ctisd  with  land,  such  as  rents, 
tithe,  rights  of  common,  seignorial  rights,  but  also  offices, 
have  been  confined  to  habitable  strnctures,  when  coupled 
with  and  following  such  words  as  "  houses,  warehouses,  and 
shops  "  {d).  [In  an  act  making  it  penal  for  any  "  wareliouse- 
man,  wharfinger,  or  other  person,"  to  issue  any  vouchers  for 
goods,  wares,  etc.,  unless  he  shall  have  actually  received 
them  in  store,  or  to  ship  or  transfer  such  goods,  etc.,  with- 
out the  return  of  the  receipt,  the  phrase  '^  other  person  "  is 
to  be  construed  ejusdem  generis  with  warehouseman  and 
wharfinger,  and  does  not  inchide  one  who  received  grain  on 
storage  with  the  option  of  becoming  its  purchaser,  and  with- 
out compensation  if  he  should  not  exercise  that  option,  and 
who  gave  a  receipt  not  intended  to  be  negotiable.'"]  "Where 
an  Act  authorized  the  police  to  enter  any  house  or  room  used 

(a)  R.  V.  Dickenson,  7  E.  &  B.  Ch.  D.  123  ;  Chapman  v.  Cbap- 
831,  2G  L.  J.  M.  C.  204.  man,  4  Id.  800. 

(b)  11  &  13  Vict.  0.  63,  s.  64 ;  {d)  R.  v.  Mancliester  Water- 
Pub.  Healtii  Act,  1875.  s.  113;  works  Co.,  1  B.  &  C.  G30  ;  East 
Wanstead  Board  v.  Hill,  13  C.  B.  London  Water-works  Co.  v.  Mile 
N.  S.  479.  End,  17  Q.  B.  512.  21  L.  J.  M.  C. 

(c)  Powell  V.  Boraston,  18  C.  B.  49.  See,  also,  Chelsea  Water- 
N.  S.  175,  34  L.  J.  73  ;  and  see  works  v.  Bowley,  17  Q.  B.  358  ;  R. 
Morish  v.  Harris,   L.  R.    1   C.  P.  v.  Nevill,  8  Q.  B.  452. 

155.      Comp.    Hodgson  v.    Jex,  2         ■*'  Bucher  v.  Cora'tli,  103  Pa.  St. 

528. 


572  ASSOCIATED    WOKDS,  KTC.  [§  "tOT 

for  stage  plays,  and  imposed  a  j)eiialty  for  keepiuic  any  house 
or  other  "  tenement"  as  an  unlicensed  theatre;  it  was  held 
that   the  word    "  tenement ''  was    confined   in    meaning    to 
something    of    the  same  character    as  ''  house  "  or  "  room," 
and  so  did  not  include  a  portable  booth,  consisting  of  two 
wagons  joined  together,  and  used  as  a  theatre  by  strolling 
players  (a).     The' 3  &  4  Will.  4,  c.  90,  s.  33,  which  enacted 
th.at  the  owners  of  "houses,  buildings,  and  property  other 
than   hind,"   ratable  to  the  poor,  should  be  rated  at  thrice 
the  rate  imposed  on  the  owners  of  hind,  was  held  confined 
to  that   kind  of   "  property  other   than    land,"  which    was 
ejusdem  generis  with  "  houses  and  buildings."  and  that  a 
railway,  a  canal,  with  its  towing-paths,  and  a  dry  dock  lined 
with    masonry,  which    were  its    accessories,  were  not  com- 
prised in  the  expression,  but  were  ratable  as  land  (I').       On 
the  same  principle,  the  Companies  Act  of  18G2,  which  pro- 
vides (sect.  79)  that  a  company  may  be  wound  uj)  by  the 
Court  of  Chancery  when  the  company  passes  a  resolution  in 
favor  of  that  course,  or  does  not    begin  business  within  a 
year,  or  its  members  are  reduced  to  less  than  seven,  or  when 
the  Court  thinks  a  winding  up  "just  and  equitable,"  em- 
powers the  Court  by  these  last  general  words  to  wind  up 
only  when  it  is  just  and  equitable  on  grounds  analogous  to 
those  precedingly  stated  {c). 

§  407.  [An  act  empowering  certain  oSicers  to  correct 
"  clerical  or  other  errors  "  in  assessments  was,  upon  the  same 
principle,  construed  as  referring  only  to  errors  of  form  in 
the  assessment  roll,  not  to  errors  of  the  assessors  in  the 
making  of  the  assessment,  nor  to  any  substantial  errors  of 
judgment  or  of  law."  So,  an  act  prohibiting  attorneys  from 
buying  any  bond,  bill,  promissory  note,  bill  of  exchange, 
book  debt,  or  other  thing  in    action,  with  the  purpose  of 

(a)R.  V.  iMidlund  R.  Co.,  10  Q.  (c)  Spackman's  Case,  1  McN.  & 

B.  389  ;  Fredericks  v.  Howie,  1  II.  G.    170  ;   Re    Auglo-Gicek    ISteam 

&   C.    381,    31    L.   J.    M.    C.    249.  Co.,  L.  R.  3  Eq.   1  ;    'ie  Laiigham 

Comp.  R.  V.  Midland  R.  Co.,  4  E.  Rink   Co.,    5    C:h.    D.    009.      t^ce 

«fc  B.  958  ;   Day  v.  Simpson.  18  C.  und(M-  Tin;  Apporlioiimenl  Act  of 

B.  N.  S.  680,  sup.  §  139.  1870,  lie  Cox's  Trusts,  9   Ch.    D. 

(b)  R.  V.   Neath,  L.  R.  6  Q.  B.  109. 
.707.  •*-  Re  Ilermance,  71  X.  Y.  481. 


§  407]  ASSOCIATED    WOKDS,  ETC.  573- 

suing  thereon,  would  not  include  stock  in  a  corjDoration/^ 
In  a  statute  that  provides  that  "  any  niariitMl  woman  whose 
husband,  either  from  druidcenness,  protiigacy,  or  any  other 
cause,  shall  neglect  or  refuse  to  provide  for  her  support  . 
shall  have  the  right  in  her  own  name  to  transact  business, 
and  to  receive  and  collect  her  own  earnings,"  the  words 
''  any  other  cause  ' '  must  be  understood  as  referring  to  causes 
of  a  kind  with  those  previously  specified,  and  not  to  include 
mere  physical  and  mental  incapacity,"*  nor  any  temporary 
inability  of  the  husband,  in  consequence  of  sickness,  to  su]?- 
port  his  wife."  So,  a  power  given  to  certain  board  of 
officers,  in  the  management  of  a  public  institution,  to  remove 
employees  "  for  incompetency,  improper  conduct,  or  other 
cause  satisfactory  to  the  board,"  means  other  kindred  cause."° 
Where  the  charter  of  a  city  empowered  it  to  tax  persons 
engaged  in  particular  trades  or  occupations,  enumerating 
them,  such  as  auctioneers,  grocers,  merchants,  retailers, 
hotels,  hackney  carriages,  etc.,  "and  all  other  business,  trades, 
avocations,  or  professions  whatever,"  it  was  held  that  there 
was  no  authority  to  tax  any  occupation  of  a  class  not  spe- 
cifically designated,  e.  ^.,  that  of  lawyers."  An  act  giving  ju- 
risdiction to  the  court  of  common  pleas  to  appoint  viewers  to 
assess  the  damages,  whenever  a  borough  might  "  change  the 
grade  or  lines  of  any  street  or  alley,  or  in  any  way  alter  or 
enlarge  the  same,"  was  held  to  be  intended  to  give  a  remedy 
to  an  abutting  owner  where  his  property  was  injured  by  a 
change  of  grade  only,  and  hence  not  to  repeal  the  general 
statute  giving  a  remedy  by  proceedings  in  the  Quarter 
Sessions  to  obtain  damages  for  opening  or  widening  a  street 
or  alley.""  A  law  authorizing  the  assessment  of  a  tax  on 
bowling  alleys  and  billiard  tables,  and  also  on  auctioneers 
and  other  venders  of  merchandize,  etc.,  by  outcry,  and  all 
other  places  of  business  or  amusement  conducted  for  profit, 

■'^  Ramsey   v.    Gould,    57    Burb.  551).     But,  in  this  case,  the  piiuci- 

(N.  Y.)  .398.  pie  of  strict  coustruction  aidudthis 

^■*  Edsou    V.    Ilaydeu,    20  Wis.  intcrpretatiou  :  Ibid. 
682.  ■'^  ^i<^  Brady   Street,   99  Pa.  St. 

45  King  V.  Thompson,  87  Pa.  St.  591.      "  Looking  at  the   manifest 

365.  object   of   tiie   act,    we  must  read. 

•**  State   V.    McGarry,    21    Wis.  these  general  words  in  connection 

496,  with  such  object,"  says  the  Court.. 

*■'  St.  Louis  V.  Laxighlin,  49  Mo.  Ibid.,  p.  595, 


574  ASSOCIATED  WORDS,    KTC.  [§  408 

does  not  warrant  the  imposition  of  tlie  tax  upon  merchants, 
bankers  and  the  like.'*  An  act  avoiding,  unless  acknowl- 
edged, everv  "  bargain,  sale,  mortgage,  or  other  conveyance 
of  houses  and  lands"  was  held  inapplicable  to  a  lease  for 
jears  of  land  and  a  right  of  way/°  So,  where  an  act  of  the 
confederate  congress  authorized,  whenever  the  exigencies  of 
any  army  in  the  field  required  it,  the  impressment  of  "  forage, 
articles  of  subsistence,  or  other  j^roperty,"  it  was  held  that 
it  did  not  sanction  the  impressment  of  an  hotel  or  drug-store 
for  hospital  purposes."  Nor  can  ''  transport  in  any  wagon, 
■cart,  sleigh,  boat,  or  otherwise,"  extend  to  driving  cattle  on 
foot.'^J 

§  408.  Of  course,  the  restricted  meaning  which 
primarily  attaches  to  the  general  word  in  such  circum- 
stances, is  rejected,"  when  there  are  adequate  grounds 
to  show  that  it  was  not  used  in  the  limited  order  of  ideas  to 
which  its  predecessors  belong.  Thus,  where  an  inspector  of 
nuisances  was  authorized  to  inspect  articles  of  food  deposited 
in  "  any  place"  for  sale,  and  a  penalty  was  imposed  on  per- 
sons who  prevented  him  from  entering  any  "  slaughter- 
house, shop,  building,  market,  or  other  place,"  where  any 
•carcass  was  deposited  for  sale  ;  it  was  held  that  the  latter 
word  was  not  confined  to  places  ejusdem  generis  with  those 
which  preceded  it.  The  earlier  passage,  giving  authority  to 
enter  "  any  place,"  obviously  required  that  the  same  word 
should  receive  an  equally  extensive  meaning  in  the  subsequent 
passage  (a).  The  103rd  section  of  the  Public  Health  Act  of 
1848,  which  imposes  a  penalty  for  making  any  "  sewer,  drain, 
privy,  cesspool,  ashpit,  building,  or  other  work,  contrary  to 

"9  Butler's  App.,  73  Pa.  St.  448.  v.    State,    20  Ohio  St.  196.     It  is, 

*<>  Stone  V.    Stone,  1  R.  I.  425.  indeed,  said,  in   Slate  v.  Ilolman, 

See,   as   to   inclusion  of  leases   in  3  iMcCord  (S.  C.)  300,  that  liie  rule 

conveviinces,  etc.,  ante,  §  145.  in  quest  ion,  does  not  apply  in  the 

*'  White  V.  Ivey,  34  Ga.  186.  iuterpretution  of  a  criminal  statute, 

^2  U.    S.    V.    Sheldon,  2   Wheat,  except  where  there  is  some  repug- 

119.     Compare  also,  further,  upon  nancy   or  incompatibility  between 

this  principle.    Slate  v.   StoUcr,  38  the   specific    and    general    e.xpres- 

lowa,  321  ;  Mclntyre  v.  Ingraham,  sions.        See  this  case,  post,  §  410, 

35  Miss.  25  ;  State  v.   Pembcrtnn,  and  see  other  cases  intra. 

30  Mo.  376  ;  Bisli.,  Wr.  L.,    §  245.  (n)  Young  v.   GraLridge,  L.  R.  4 

"  Even   in   the   construction  of  Q.  B.    160.     See,    also,    Harris   v. 

penal    statutes  :      see     Foster    v.  Jenus,  9  C.  B.  N.  S.  152,  30  L.  J. 

Blount,  18  Ala.   687;  Woodworth  M.  C.  183. 


§  409]  ASSOCIATED    WORDS,  ETC.  575 

tlio  provisions  of  the  Act,''  would  include,  under  the  word 
"  building,"  not  only  constructions  of  a  cluu'acter  similar  to 
those  previously  mentioned,  but  also  dwelling  houses  {a). 

When  justices,  empowered  to  prepare  a  standard  for  an 
equal  county  rate,  were  authorized  for  this  purpose  to  direct 
overseers,  assessors  of  rates,  and  other  persons  having  the 
management  of  the  rates  or  valuations,  to  make  returns  of 
the  annual  value  of  the  property  in  the  parish,  and  to  i-equire 
"the  said  overseers,  assessors,  collectors,  and  any  other  per- 
sons whomsoever,"  to  produce  parochial  and  other  rates  and 
valuations,  "  and  other  documents  in  their  custody  or  power," 
the  context  showed  that  the  final  generic  expression  was  not 
confined  to  official,  but  extended  to  private  persons  (^).  So, 
where  an  Act  imposed  a  rate  on  a  variety  of  tenements  and 
buildings  which  were  enumerated,  and  on  "other  buildings 
and  hej-editaments,  meadow  and  pasture  excepted,"  the 
exception  appended  to  the  concluding  general  words  showed 
that  the  latter  were  used  in  their  widest  sense,  and  were  not 
limited  in  meaning  by  the  particular  terms  which  preceded 
them  (c). 

§  409.  Further,  the  general  principle  in  question  applies 
only  where  the  specific  words  are  all  of  the  same  nature. 
Where  they  are  of  different  genera,  the  meaning  of  the 
general  word  remains  unatfected  by  its  connection  with  them. 
Thus,  where  an  Act  made  it  penal  to  convey  to  a  prisoner, 
in'  order  to  facilitate  his  escape,  "  any  mask,  dress,  or  dis- 
guise, or  any  letter,  or  any  other  article  or  thing,"  it  was 
held  that  the  la<st  general  terms  were  to  be  understood  in  their 
primary  and  wide  meaning,  and  as  including  any  article  or 
thing  whatsoever  which  could  in  any  manner  facilitate  the 
escape  of  a  prisoner,  such  as  a  crowbar  (/I).  Here,  the  several 
particular  words  "  disguise  "  and  "  letter,"  exhausted  whole 
genera ;  and  the  last  general  words  must  be  understood, 
therefore,  as  referred  to  other  genera. 


(a)  Pearson  v.  Kingston,  3  H.  &  (c)  R.    v.    Shrewsbury,    3  B.  & 
C.   921.   35  L.  J.  M.  C.  44.     See  Ad.  21G. 

Morish  V.  Harris,  L.  R.  1  C.  P.  155,  (d)  R.  v.  Payne,  L.  R.  1  C.  C.  27. 

as  L.  J.  101.  See  also  Shillito  v.  Tliompson,  1 

(b)  R.  V.  Doubleday,  3  E.  &  E.  Q.  B.  D.  12. 
601.  30  L.  J.  99. 


576  AssMt  lAiKi)  \v<>i:i)s,  i/rc.  [^  410 

^  410.  TIu'.    noiieral  object    of  the    Acf,  also,  soiuetiuies 
requires  thut  the  tinal  generic  word  shall  not  be  restricted  in 
meaning  by  its  predecessors.     [The  rule  in  general  requiring 
the  opposite  is  merely  an  aid  in  ascertaining  the  legislative 
intent,  and,  of  course,  does  not  warrant  the  court  in  confining 
the  operation  of  a  statute,  be  it  penal  or   otherwise,  within 
limits  narrower    than    those  intended    by  the  law-maker," 
nor  require  the  entire  rejection  of  general  terms  ;  but  is  to  be 
taken  and  aj)plied  in  connection    with   other  principles  of 
statutory  construction,  e.  g.,  that  the   declared   intention  of 
the  Legislature  is  to  be  carried  into  eft'cct.""]     Thus  the  17 
Geo.  3,  c.  50,  which,  after  reciting  that  stolen  materials  used 
in  certain  manufactures  were  often  concealed  in  the  posses- 
sion of  persons  who  had  received  them  with  guilty  knowledge, 
and  that  the  discovery  and  conviction   of  the  offenders  was 
in  consequence  difhcult,  proceeded  to  authorize  justices  tc» 
issue  search  warrants  for  j)urluined  materials  sus[)ected  to  be 
concealed  "in  any  dwelling-house,  out-house,  yard,  garden, 
or  other  place,"  was  held  to  include,  under  the  last  word,  a 
warehouse  which  was  a  mile  and  a  half  from  the  dwelling- 
house  ;  though  all  the  places  specifically  enumerated  were 
such  only  as  are  immediately  adjacent  to  a  dwelling  house 
{a).     Though    such    a    warehouse    would    probably    not    be 
usually  considered   as   ejusdem   generis   with   a  ''  dwelling- 
liouse,"  coupled   with   its   enumerated  dependencies,  it  was- 
reasonable,  having  regai'd  to  the  preamble  and  the  general 
object  of  the  statute,  to  think  tliat  the  warehouse  was  within 
the  contemplation  of  the  Legislature,  as  it  was  a  very  likely 
place  for  the  concealment  against  which  the  enactment  was. 
directed  ;  and  a  narrower  construction  would  have  restricted 
the  effect,  instead  of  promoting  the  object  of  the  Act.      The 
requirement  of  the  Munici[)al  Corporations  Act,  5  &  0  Will. 
4,  c.  TO,  s.  32,  that  voting  ])apers  should   be  signed  by  the 
voter,  and  state  the  name  of  the   "  street,  lane,  or  place,"  in 
which   the   property    was  situated   in   respec^.t  of    which  he 
claimed  to  vote,  was  considered  satisfied  by  a  statement  of  the 
parish  where  the  property  lay  ;  the  object  of  the  provision 

^*  Woodworth  v.  State,  2G  Ohio      (S.  C.)  474. 
St.  196.  («)  li-  V.  Edmundsoii,  2  E.  <fc  E. 

^^   State  V.    Williams,  2  Stroh.      77,  28  L.  J.  JI.  C.  213. 


§  411]  ASSOCIATED  WORDS,  ETC.  577 

being,  apparently,  the  identification  of  the  voter  {a).  [So^ 
where  an  act  prohibited  the  sale  of  liquors,  cigars,  tobacco,, 
candies,  peaches,  mineral  water  "  and  other  articles  "  within 
a  specified  distance  from  a  religious  meeting,  without  per- 
mission, etc.,  it  was,  with  reference  to  the  object  of  the  law 
to  prevent  the  sale  of  all  articles  except  by  permission,  held 
that  the  statute  was  violated  by  tlie  sale  not  only  of  the  articles 
enumerated,  but  of  any  other,  the  circumstances  otherwise 
bringing  the  case  within  the  act,'*  An  act  punisliing  one  will- 
fully putting  into  a  ball  of  cotton  any  "  stone,  wood,"  etc.,  or 
"  any  matter  or  thing  whatsoever,"  would  embrace  one  who 
put  in  an  undue  quantity  of  water."  An  act  punishing  the  tak- 
ing of  "cotton,  corn,  rice,  or  other  grain,"'  was,  by  the  last 
phrase,  held  to  include  peas.'*  And  a  supervisor  of  roads  was 
held  to  be  within  the  protection  of  a  statute  punishing 
resistance  to  a  "sheriff,  constable,  or  other  officer."^'] 

§  411.  Several  decisions  on  a  recent  enactment  are 
instructive  examples  of  the  application  of  the  above-men- 
tioned rulesj  as  to  the  effect  of  words  of  analogous  mean- 
ing on  each  other,  and  of  specific  words  on  the  more 
general  one,  which  closes  the  enumeration  of  them ;  as 
well  as  of  their  subordination  to  the  more  general  princi- 
ple of  gathering  the  intention  from  a  review  of  the  whole 
enactment,  and  giving  effect  to  its  paramount  object.  The 
16  &  17  Vict.  c.  119,  after  reciting  that  a  kind  of  gaming 
had  lately  sprung  up,  to  the  demoralization  of  improvident 
persons,  by  opening  places  called  betting-houses  or  ofHces, 
enacts,  for  the  better  suppression  of  them,  that  any  person 
who,  being  "  the  owner  or  occupier  of  any  house,  office,  room, 
or  place,"  should  "open,  keep,  or  use,"  or  "knowingl)'  per- 

(a)    Per    Lord    Campbell     and  S;?  346.      In  construing  a  contract 

Crompton,  J.,  in  R.  v.  Spratley,  6  between  a  reservoir  company  and 

E.  &  B.  263,  25  L.   J.  257.      See  the  owner  of  a  coltou  mill,  whereby 

Lowther  v.  Bentinck,  L.  R.  19  Eq.  the  latter  was  to  have  the  right  to 

166.  draw  water  to  run  his  mill,  "or 

*^  Stale  V.  Solomon,  33  Ind.  450.  such  other  mill  or  mills  as  maj'  be 

"  State  V.    Holmau,   3  McCord  erected   upon   his  said   privilege,'^ 

(S.  C.)  306.  the  court  refused    to  restrict  the 

^*  State  V.  Williams,  supra.    And  latter  phrase  to  mills  of  the  same 

see  Randolph  v.  State,  9  Tex.  531,  kind,    but  held   it    to    include    a. 

as  to  "  any  other  banking  game."  paper  mill  :  Phoenix,   etc,    Co.  v. 

59  Woodworth  v.  State,  26  Ohio.  Hazen,  118  Mass.  850. 
St.  196.      See,  also,  Bish.,  Wr.  L.. 

37 


578  ASSOCrATED  WORDS,  KTC.  [>?  411 

mit"  it  to  \)C  Ubcd  for  the  pur])oriCt>  of  bcttin<r,  should  be 
liable  to  a  penalty  of  50/.,  and  to  an  action  for  the  recovery 
of  any  deposit  iniido  wirli  liiiii  in  i-espect  of  the  bet.  The 
Court  of  Common  Pleas  liehl  that  a  man  who  habitually 
resorted  to  a  certain  spot  under  a  tree  in  llyde  Park,  and  there 
made  bets,  occupied  a  "  place  "  within  the  meaning  of  the 
Act.  Although  that  general  word  was  used  with  specific  ones 
which  involved  the  idea  of  structure,  the  mischief  aimed  at, 
which  w:is  to  prevent  skilled  })ei'suns  using  a  welhknown  place 
for  inducing  improvident  persons  to  bet,  wns  equally  great 
whethei-  under  a  tree  or  in  a  room  (a).  This  decision  was 
reversed  I)y  the  Exchecpier  Chamber  on  the  ground,  chiefly, 
that  the  defendant  could  not  be  said  to  be  the  ''occupier" 
of  the  place  ;  as  that  expression  derived  a  meaning  from  the 
one  with  which  it  was  couplcil,  which  implied  some  legal 
and  exclusive  title  to  the  place  (h).  But  a  temporary  wooden 
structure,  erected  on  a  piece  of  ground  rented  by  the  person 
who  used  it  for  betting  purposes,  though  unroofed  and  not 
tixed  to  the  soil,  was  afterwards  held  to  be  a  "  place"  within 
the  Act  (c) ;  and  in  another  case,  a  man  who  carried  on  the 
same  business,  standing  on  a  stool  sheltered  under  a  large 
und)rella  on  which  was  printed  an  indication  of  the  business, 
was  held  to  be  the  "  occupier  of  a  place  "  within  the  Act ;  as 
he  had  in  fact  appropriated  it  for  his  proceedings,  though 
he  paid  no  rent  and  had  no  greater  right  to  stand  on  the  spot 
than  any  others  of  the  public  who  were  admitted  {d).  In 
another  case  a  piece  of  enclosed  land  of  about  four  acres  was 
considered  a  "place"  within  the  Act  (c^).  [On  the  other 
hand,  in  a  btatnte  empowering  municiiial  officers  to  "sell" 
shares  of  a  railway  corporation  for  which  the  city  had  snb- 
scribe<l,  the  addition  of  the  general  phrase  :  "  and  to  do  what- 
ever else  may  seem  necessary  ....  in  the  premises,"  was  held 
not  to  work  an  enlargement  of  the  powers  specilically  granted, 
but  to  invest  the  officers  with  a  discretion  only  as  to  the 
manner  of    sale,  and  not  to    authorize    them    to    barter    or 

(a)  Do^'j^clt  V.  Cattiirns,  17  C.   B.  (d)  Bows  v.  Fenwick,  L.  R  9  C. 

N.  S.  GObr^-t  B.  J.  -IG.  P.    33U.         Sie    a     similar     case. 

(h)  Id.,  1!)  C.  n.  N.  S.  705,  U  L.  Galloway   v.    Jlaiios,  8   Q.   B.  1). 

.1.   ir,9.  275,  51  L.  J.  I\I.  C.  r>8. 

(c)  aiiaw  V.  iMorley,  L.   R.  3  E.x.  (f)  Eastwood  v.  Mellor,  L.    li.  9 

137.  Q.  B.  440. 


§  413]  ASSOCIATED  WORDS,    ETC.  579 

exchange  the  shares,*" — an  effect,  attributed  in  tlie  decision 
to  the  phrase  "  in  the  pretiiises,"  clearly  limiting  the  discre- 
tion to  the  manner  of  the  execution  of  the  special  grants  of 
power.] 

§  412.  Rule  that  Inferior  Does  not  Include  Superior. — Analo- 
gous to  the  rules  above  considered  is  another,  that  when  words 
descriptive  of  the  rank  of  persons  or  things  are  used  in  a 
descending  order  according  to  rank,  the  general  words  super- 
added to  them  do  not  include  persons  or  things  of  a  higher 
rank  or  importance  than  the  highest  named,  if  there  be  any 
lower  species  to  which  they  can  apply."'  In  such  a  case,  the 
general  word  is  taken  not  as  generic,  but  as  including  only 
what  is  lower  in  the  genus  than  the  lowest  specified.  Thus, 
the  13  Eliz.  c.  10,  s.  3,  which  avoided  conveyances  by  masters 
and  fellows  of  colleges,  deans  and  chapters  of  cathedrals, 
parsons,  vicars,  and  "  others  having  any  spiritual  or  ecclesias- 
tical living,"  would  not  include  bishops  («).  The  statute  of 
Marlbridge,  52  Hen.  3,  c.  29,  also,  which  gave  a  right  of 
action  in  certain  cases  to  "  abbots,  priors,  and  other  prelates 
of  the  Church,"  did  not,  according  to  Lord  Coke,  include 
bishops  ;  because,  among  other  reasons,  the  bishop  is  of  a 
higher  degree  than  an  abbot  (b.)  Duties  imposed, 
under  the  general  head  of  "  metals,"  upon  "  copper,  !>rass, 
pewter,  and  tin,  and  on  all  other  metals  not  enumerated," 
would  include  only  metals  inferior  to  those  named,  and  not 
fall  on  gold  or  silver,  which  are  commonly  known  as  precious 
metals  (c).  [After  enumerating  several  descriptions  of 
claims  that  shall  be  entitled  to  preference  in  the  dostribution 
of  an  intestate's  estate,  where  the  same  is  insufficient  to  pay 

•^^  Cleveland  v.  State  Bank,   16  sunie,  therefore,  in  construing  his 

Ohio  St.  236.  language,  that  he  did  not  intend  to 

*'  This  rule,  as  well  as  that  include  things  higher  than  any- 
requiring  the  construction  of  gen-  mentioned,  or  of  a  class  outside  of 
eral  expressions  following  speci-  those  specified  :"  Bisii.,  Wr.  L.,  § 
fie  ones  as  intended  to   designate  246b. 

things    ejusdem     generis,    is   s;iid  (a)  The    Abp.     of   Cantei'bury's 

to    '"accord    with     tlie     ordinary  Case,    2   Rep.    46b.;   Copland    v. 

workings  i)f  the  human  mind.     A.  Powell,  1  Biug.  373.     [Woodworth 

writer    who     enimierates     certain  v.  Paine's  Adni'rs,  1  111.  294.     And 

things,    adding   a    general  clause,  sec  Ellis  v.  Murray,  28  Miss.  129.] 

mentions,  as  of  course,  the  highest  {b)  2  Inst.  151,  457,  478  ;  2  Rep. 

things,    and   some  of   each  class,  46b. 

within  those  which  be  had  in  con-  (c)  Casher  v.  Holmes,  2  B.  &  Ad. 

templation.  .  .    We  reasonably  as-  592  ;  per 'Parke,  B. 


580  ASSOCIATED  WORDS,  ETC.  [g  412" 

all  the  debts,  an  act  directs  that  the  "  executors  .  .  shall 
then  pay  the  balance  on  the  legal  demands  in  equal  pro- 
portions, according  to  their  amount,  without  regard  to  the 
nature  of  said  demand,  not  giving  preference  to  any  debts 
on  account  of  the  instrument  of  writing  on  which  the  same 
may  be  founded."  Among  the  enumerated  claims,  judg- 
ments were  not  mentioned.  It  was  held,  that,  as,  at  common 
law,  debts  were  to  be  paid  by  executors  according  to  their 
dignity,  and  as  an  enumeration  of  things  or  persons  of  an 
inferior  could  not  embrace  things  or  persons  of  a  superior- 
dignity,  judgments  retained  the  preference  in  the  distribution 
which  tlley  had  before."']  The  22  &  23  Car.  2,  c.  25,  which 
empowei'cd  the  lords  of  "manors  and  other  royalties"  tO' 
grant  a  deputation  to  a  gamekeeper,  was  limited  to  the  lords 
of  such  royalties  as  are  inferior  to  manors  ;  for  if  a  royalty 
of  a  higher  nature  had  been  meant,  that  would  have  preceded 
the  term  "  manor  "  (a). 

The  2  Westin.  c.  47,  which  prohibited  salmon-iishing  from 
Lady-da}^  to  St.  Martin's,  in  "  the  waters  of  the  Humber,. 
Owse,  Trent,  Done,  Arre,  Derewent,  Wherfe,  Nid,  Yore, 
Swale,  Tese,  Tine,  Eden,  and  all  other  waters  wherein  salmons 
be  taken,"  was  considered  as  including,  in  the  final  general' 
expression,  only  rivers  inferior  to  those  enumerated,  and 
thercfore  as  not  comprising  nobile  illud  flumen,  the 
Thames  (5).  An  Act  which  punished  cruelty  to  any  "  hoi'se,, 
mare,  gelding,  mule,  ass,  ox,  cow,  heifer,  sheep,  or  other 
cattle,"  was  held  not  to  include  a  bull  (c).  A  statute  which 
spoke  of  indictments  before  justices  of  the  peace  and  "  others 
having  power  to  take  indictments,"  was  understood,  on  the 
general  ground  under  consideration,  as  not  applying  to  the 
Superior  Courts  {d).  But  the  11  &  12  Vict.  c.  42,  which 
authorizes  justices  of  the  peace  to  inquire  into  indictable- 
offences  committed  on  the  high  seas  or  abroad,  and  to  bind 
the  witnesses  to  appear  at  the  next  "  court  of  oyer  and 
terminer,  or  jail  delivery,  or  superior  court  of  a  County 
Palatine,  or  the  Quarter  Sessions,"  would  authorize  a  justice 

«>*  Woodworth  v.  Paine's  Adm'rs,  4  T.  R.  224,  459. 
1  111.  374.  (b)  2  Inst.  478. 

(a)  Ailesbury  v.  Pattison.  Doug.  (c)  Exp.  Hill,  3  C.  «fc  P.  225. 

28.     Sec,   also,  Evaus  v.  Stevens,  (d)  2  Rep.  4Gb. 


;§§  413,  414]  associatp:d  words,  etc.  581 

to  hold  an  inquiry  into  an  offence  committed  by  a  Colonial 
Governor  in  his  colony,  which  is  triable  by  the  Queen's 
Bench.  That  court,  was  included  in  the  words,  '*  court  of 
oyer  and  terminer"  (a). 

§  413.  [Notwithstanding  the  reasonableness  of  this 
mode  of  construction,  founded  as  it  is  upon  the  experience 
of  the  natural  working  of  men's  minds,'^  "  when  the 
court  can  discern  that  the  mind  of  the  maker  of  a  statute 
moved  otherwise,  it  should  not  apply  to  his  work  this 
rule  of  interpretation.""  Thus,  where  the  express  words 
used  in  the  detailed  enumeration  embrace  all  the  things  or 
persons  capable  of  being  classed  as  of  an  inferior  degree,  and 
there  are  still  general  words  used  in  addition,  it  is  clear  that 
'they  must  be  applied  to  things  or  persons  of  a  higher  degree 
than  those  enumerated."  Otherwise  they  would  have  to  be 
left  without  effect,  which  is  not  permissible.'" 

§  414.   Several   Words    Followed   by   a  General  Expression. — 

[The  strict  rule  of  grammar  would  seem  to  require,  as  a 
general  thing,  a  limiting  clause,  or  phrase,  following  several 
expressions  to  which  it  might  be  applicable,  to  be  restrained 
to  the  last  antecedent."  Thus,  in  a  clause  "  reserving  to  the 
town  of  Hull  the  privilege  of  the  shores  and  of  feeding  all 
lands  not  comprehended  within  the  aforesaid  bounds,"  the 
phrase  "  not  comprehended,"  etc.,  was  held  to  refer  only  to 
the  last  antecedent.'*  Under  a  provision  providing  for  the 
adoption  of  a  statute  by  cities  and  towns"  at  a  legal  meeting 
of  the  city  council  or  the  inhabitants  of  the  town  called  /'or 
^that  purpose,"  it  was  held  that  the  limitation  contained  in 
the  phrase,   ''called  for  that  purpose"   did  not  apply  to  the 

(a)  R.   V.   Eyre,  L.  R.  3  Q.  B.  extreme  strictness  of  construction 

487.  may  perhaps  be  attributed  to  the 

^*  See  ante,  §  412.  excessive  severity  of    the  law  in 

«  Bish.,  Wr.  L.,  §  246b.  question  :  1  Bl.  Comm.  88.    Comp. 

«5  [Ellis  V.  Murray,  28  Miss.  129]  Child  v.  Hearn,  L.  R.   9  Ex.  176  ; 

2  Inst.  137.  Fletcher  v.    Sondes,  3  Binaj.  580  ; 

^^   [See  ante,  §§  23,    265.]      It  R.  v.  Paty,  2  VV.  Bl.  721  ;  Wright 

was,  indeed,  once  thought  that  in  v.  Pearson,  L.  R.  4  Q.  B.  582. 

the  14  Geo.  2,  c.  6,  which  made  it  "   See  Gushing  v.   Warwick,    9 

a  capital  felony  to  steal  sheep  or  Gray  (Mass.)  382  ;  Gyger's  Estate, 

"  other  cattle,"  this  last  expression  65  Pa.  St.  311.     And  see  Fisher  v. 

was  "much  too  loose  "  to  include  Connurd,  100  Id.  63. 

any  other  cattle  than  thosi;  already  ^*  Cashing  v.  Warwick,  supra. 
:3pecified,    viz.,    sheep  ;    but    this 


582  AS^sO.IATKD  WORDS,  ETC.  [§  414 

action  of  city  councils."  Again,  where  tlie  by-laws  of  a 
society  provided  that  the  annual  meeting  for  the  election  of 
officers  should  be  held  on  the  first  Sunday  in  July  in  each 
year,  and  the  monthly  meeting  on  the  first  Tuesday'  of  each 
month,  at  half  past  seven  o'clock,  P.M.,  it  was  held  that  "at 
half  past  seven  o'clock,  p.m.,"  must  be  deemed  as  fixing  the 
hour  for  the  monthly  meeting  only.'"'  Similarly  the  words 
"which  "  and  "said  "  are  said  to  refer  to  the  last  nntecedent, 
whether  it  be  a  word  or  a  clause,  to  which  they  can  properly 
apply,  and  not  to  include  the  clause  preceding  the  last."  But 
this  technical  grammatical  rule  is  liable  to  be  displaced 
wherever  the  subject-matter  requires  a  different  construc- 
tion,'^ in  obedience  to  the  principle  elsewhere  discussed,"  that 
rules  of  that  character  are  subordinated  to  a  common  sense- 
reading  of  an  enactment.  An  example  in  point  here  has 
already  been  given  in  that  connection.'^  Another  is  found 
in  the  decision  upon  the  construction  of  a  clause  j^reserving 
from  discharge,  under  a  judicial  sale,  the  lien  of  a  mortgage 
prior  to  all  other  liens  "except  other  mortgages,  ground- 
rents,  purchase-money  due  the  commonwealth,  taxes, 
charges,  assessments  and  municipal  claims,  whose  lien, 
though  afterwards  accruing,  has,  by  law,  priority  given  it," 
where  the  relative"  whose"  was  held  to  refer  not  only  to  the 
immediately  antecedent  term  "  municipal  claims,"but  to  taxes, 
charges  and  assessments  as  well,  on  the  ground,  that,  as  in 
other  acts  in  pari  materia,  all  these  terms  were  used  and 
grouped  together  as  a  class  and  intended  to  be  so  under- 
stood," Indeed,  in  most  cases,  it  will  be  found,  on  some 
ground  of  this  sort,  that,  where  several  words  are  followed 
by  a  general  qualifying  expression  which  is  as  much 
applicable  to  the  first  as  to  the  last,  that  expression  is  not 
limited  to  the  last,  but  applies  to  all.'*     Thus,  in  a  provision. 

"  Quinn   v.   Electr.   Light  Co.,  186. 
140  Mass.   106,  city  councils,  it  is  '''^  Cu.=;hing  v.  Warwick,  .supra, 

said,    being    usually   composed  of  ""^  Ante,  t^g  81,  83. 

different  bodies  acting  at  regular  ■"■•  Gyger's*^  Est.,  65  Pa.   St.   311, 

meetings    and     under     prescribed  ante,  ^  81. 
rules  of  procedure.  ■'^  Fisher  v.  Connard,  100  Pa.  St. 

"»  Slate  V.  ConkJin,  34  Wis.  21.  63. 

•'  Fowler  V.  Tutile,  24  N.  II.  9.  ■'^  Great  West.  Ry.  Co.  v.   Swin- 

And  for  a  similar  rule  in  the  con-  don,  etc.,   Ry.   Co.,  L.    R.   9  Ajip. 

struct  ion  of   provisos,  .see   ante,  §  Cas.  787. 


g  414]  ASSOCIATED    AVORDS,  ETC. 


583 


in  the  third  section  of  the  Land  Chmses  Act,  that  "  lands  " 
shall  extend  to  "  niessuai^es,  lands,  tenements,  and  heredit- 
aments of  any  tenure^''''  the  last  words  were  held  to  apply  to 
all  the  preceding  ones,  not  to  "  hereditaments  "  only."  So,  an 
act  providing  that  it  should  be  lawful  for  any  court  having 
equity  jurisdiction  in  any  suit  "  concerning  goods,  chattels, 
lands,  tenements  or  hereditaments,  or  for  the  perpetuating 
of  testimony  concerning  any  lands,  tenements,  etc.,  situate  or 
being  within  the  jurisdiction  of  such  court,"  to  order  and 
direct  the  service  of  subpoenas  upon  defendants  beyond  its 
jurisdiction,  it  was  held  that  the  "goods,  chattels,  lands,  ten- 
ements or  hereditaments  "  mentioned  in  the  iirst  clause,  were, 
like  those  in  the  clause  concerning  the  perpetuating  of  testi- 
mony, such  only  as  were  "  situate  and  being  within  the 
jurisdiction  of  such  court.""  Similarly,  where  words  occur 
at  the  end  of  a  section,  it  is  said  that  they  are  presumed  to 
refer  to  and  to  qualify  the  whole.''  Thus,  where  a  section 
provided  that  no  person  holding  office  under  the  act  of  which 
it  was  a  part  should  be  liable  to  military  or  jury  duty,  or  to 
arrest  on  civil  process,  nor  to  service  of  subpoenas  from  civil 
courts  while  actually  on  duty,  it  was  held  that  the  latter 
phrase  applied  to  the  whole  sentence.^'  And  so  where  a  re- 
strictive provision  occurs  at  the  end  of  a  series  of  sections. 
Thus,  an  act  limited  the  compensation  which  certain  officers 
might  retain  from  fees  received  by  them  ;  a  subsequent  act 
provided,  in  one  section,  that,  in  a  certain  class  of  cases 
the  officers  njight  charge  and  receive  from  suitors  certain 
fees,  and,  in  the  next  section,  that,  in  the  remaining 
class  of  those  cases,  they  should  receive  a  like  compen- 
sation from  the  United  States;  the  last  section  provided 
that  no  officer  should  receive  a  greater  compensation  than 
the  amount  then  limited  by  law  ;  and  it  was  held  that  this 
provision  was  applicable  to  the  fees  given  by  both  sections." 

"  Ibid.  ;  Lord  Bramwell  saying.  314. 

at    p.    808,    that    in    tlie     phrase  "    Coxton     v.    Dolan.    2    Daly 

"horses,    oxen,    pigs    and    sheep,  (N.  Y.)  66.     And  see  Hart  v.  Ken- 

from  whatever  country  they  may  nedy,  15  Abb.  Pr.  (N.  Y.)  433. 

come,"  the  hist  chiuse  would  apply  »»  Ibid.     See  infra,  5^  415. 

alike    to    horses,    oxen,    pigs  and  »'  U.   S.  v.  Babbit,  1  Black,  55. 

slieep.  It  was  said  by  the  court,  at  p.  (il. 

■>«  Eby's  App.,   70  Pa.   St.   311,  that,  if  the  proviso  could  pn. pcrly 


584:  ASSOCIATED  WOUDS,    ETC.  [§§    il5,    41G 

But,  where  one  section  of  an  act  gave  to  niunicipalitius  power 
to  establish  libraries,  and  the  next  section  provided  that  "  any 
town  or  city  may  appropriate  money  for  suitable  buildings 
or  rooms,  and  for  the  foundation  of  such  library  a  sum  not 
exceeding  one  dollar  for  each  of  its  ratable  polls  in  the  year 
next  preceding,"  also  annually  thereafter  a  sum  not  exceeding 
fifty  cents  for  each  of  its  ratable  polls,  etc.,  it  was  held  that 
clearly  the  restriction  was  only  upon  the  amount  to  be  put 
into  books,  not  upon  that  to  be  expended  upon  the  building 
or  rooms. *^ 

§  415.  General  Expression  in  Middle  of  Clause. — [On  the  con- 
trary, where  general  words  occur  in  the  micklle  of  a  sentence 
and  sensibly  apply  to  a  particular  provision  of  it,  they  are 
not  to  be  extended  to  what  follows.*^  Thus,  in  the  case  of 
the  act  above  referred  to,*^  it  was  said,  that,  had  the  last 
clause  of  the  provision  read  "  nor,  while  actually  on  duty,  to 
service  of  subpcEuas  from  civil  courts,"  the  sense  would  have 
been  very  different,  the  qualifying  power  of  those  words,  in 
such  case,  being  confined  to  the  clause  with  which  they 
would  thus  have  been  immediately  connected/^ 

§  416.  Reddenda  Singula  Singulis. — [Where  the  opening 
words  of  a  section  are  general,  whilst  the  succeeding  parts 
of  it  branch  out  into  particular  instances, — "  where  several 
words  importing  power,  authority  and  obligation  are  found 
at  the  commencement  of  a  clause  containing  several  branches, 
it  isnot  necessary  that  each  of  those  words  should  be  applied 
to  each  of  the  different  branches  of  the  clause  ;  it  may  be  con- 
strued reddendo  singula  singulis ;  the  words  giving  power 
and  authority  may  be  applicable  to  some  branches,  and  those 


be    applied    only  to    the    officers  statute   as  if    it    were  within  the 

named  in  the  section  to  whicrh  it  letter." 

Avas  appended,  the  court  would,  ^-   Dearborn    v.    Brookline,    97 

upon   the   ground   of    identity    of  Mass.  46(5. 

reason  and  intention,  and  the  im-  ^^    Coxton     v.    Dolan.    2    Daly 

probability   of  a  coutiary  design,  (N.  Y.)  66.     And  see  Hart  v.  Kt-n- 

hold  that   it  was   clearly    implied  nedy,    14   Abb.    Pr.    (N.   Y.)   432. 

that  the  same  rule  should  apply  to  But     see     ante,     §  3i8,     for     an 

lliose  namctl  in  the   previous  sec-  instance     of     transposition     of     a 

tion ;     declaring    that     "a     thing  proviso. 

within  the  intention  of  the  makers  ^    Coxton    v.    Dolan,    supra,   ;^ 

of  a  statute  is  as  much  within  the  414. 

8^  Ibid. 


§  416]  ASSOCIATED    WORDS,  ETC.  *  585 

of  obligation  to  others.'"*  Thus,  one  section  of  an  act  'jjro- 
vided  "  it  shall  and  may  be  lawful  for  the  directors,  and  they 
are  hereby  authorized  and  required,  to  form  a  new  common 
sewer,  and  also  to  alter  and  reconstruct  all  or  any  of  the 
sewers  of  the  citj^,  and  also  to  make  such  other  alterations 
and  amendments  in  the  sewers  as  may  or  shall  be  necessary." 
It  was  decided  that  the  directors  of  the  company  were  bound 
to  form  a  new  common  sewer,  but  were  merely  authorized, 
and  not  bound,  to  alter  and  reconstruct  the  other  sewers  of 
•the  city.*'  Stated  more  generally,  the  rule  is  that  words  in 
different  parts  of  a  statute  must  be  referred  to  their  appro- 
priate connections,  giving  each,  in  its  proper  place,  its 
proper  force,  reddendo  singula  singulis,  and,  if  possible, 
rendering  none  of  them  useless  or  superfluous  f^  or,  again  : 
■^'  The  different  portions  of  a  sentence,  or  different  sentences, 
are  to  be  referred  respectively  to  the  other  portions  or  sen- 
tences to  which  we  can  see  they  respectively  relate,  even  if 
strict  grammatical  construction  should  demand  otherwise.'"' 
The  3  &  4  William  4,  c.  22,  provided  that  "  the  property 
of,  and  in  all  lands,  tenements,  hereditaments,  build- 
ings, erections,  works  and  other  things  wliich  shall 
liave  been  or  shall  hereafter  be  purchased,  obtained,  erected 
constructed  or  made  by  or  by  order  of,  or  which  shall  be 
within  or  under  the  view,  cognizance,  or  management  of  any 
Commissioners  of  Sewers,"  should  be  vested  in  such  commis- 
sioners.    If  this  section  had  been  read  literally,  the  property 

86  Bayley,  J.,  in  R.  v.  Bristol  tive  application,  but  held  that 
Dock  Co.,  6  B.  &  C,  at  pp.  191,  " prosecution "  and  "indictment" 
192.  This  quotation  and  the  Eng-  were  used  as  synonymous,  and 
lish  cases  in  this  section  are  bor-  that  the  time  limited  was  to  be 
rowed  from  Wilb.,  Stat.  L.,  pp.  computed  from  the  time  a  true 
189-191.  bill  was  found.     But  this  construc- 

87  R.  V  Bristol  Dock  Co.,  6  B.  tion  of  the  words  "prosecution" 
&  C.  181.  and   "indictment"   was  aided  by 

'Ss   Mclntyre    v.    Ingraham,    35  other  language  in  the  act,  indicat- 

Miss.  25.  ing  their   use  in  the  same  sense, 

8?   Com'th    V.    Barber  (Mass.)  3  and  the  refusal  to  apply  the   prin- 

IN"ew  Engl.  Hep.   901,  903.     Com-  ciple  reddenda  singula  sinu;ulis  is, 

pare,  however.  Com'th  v.  Haas,  57  to  some  extent,    placed  upon  the 

Pa.   St.    443,  445,    where,    in  con-  character  of  the  enactment.'     "  As- 

struing    a    provision     that      "all  tuteness  must  not  be  employed  to 

indictments  and  prosecutions  .   .   .  narrow    or    take   away  a   defence 

shall  be  brought  or  exhibited  within  granted  by  law  to  a  party  accused 

two  years,"  etc.,  the  court  refused  of  crime." 
to  give  to  tlvese  words  a  distribu- 


5S0  ASSOCIATKI)    WOliUS,    ETC.  [§  416- 

in  all  lands  which  were  under  the  view  or  cognizance  of  any 
Commissioners  of  Sewers  would  have  vested  in  them,  and 
the  owners  would  have  been  deprived  of  their  lands  without 
compensation.  To  avoid  this  result,  the  court  read  the 
words  reddendo  singula  singulis,  and  held  that  the  section 
vested  in  the  Commissioners  the  property  in  lands  purchased 
by  them,  and  in  works  and  other  things  under  theii'  view, 
cognizance  and  manairement.""  An  act  of  Congress  directed 
that  all  fines,  penalties,  and  forfeitures  accruing  under  the 
laws  of  Maryland  and  Virginia,  in  the  District  of  Columbia 
should  be  recovered  by  indictment  or  information  in  the 
name  of  the  United  States,  or  by  action  of  debt  in  the  name 
of  the  United  States  and  of  the  informer.  It  was  held,  red- 
dendo singula  singulis,  that  the  proceedings  should  be  by 
indictment,  where,  under  the  laws  of  the  state  in  which  it 
was  taken  such  was  the  proper  course,  and  by  action  of  debt, 
where,  by  such  laws,  a  private  action  only  could  be  sustained." 
The  principle  was  also  applied  in  the  construction  of  an  act, 
one  section  of  which  required  all  brokers  and  private  bankers 
to  make  an  annual  return  of  the  profits  of  their  business,  and 
another,  to  make  a  report  of  their  names,  places  of  business 
and  capital  employed,  and  then  enacted  that  every  "  banker 
or  broker  who  shall  neglect  or  refuse  to  make  the  return  and 
report  required  by  the  first  and  second  sections  of  this  act, 
shall  for  every  such  neglect  or  refusal,  be  subject  to  a 
penalty,"  etc.  It  was  held  that  a  separate  penalty  was  im- 
posed for  the  neglect  to  make  each  report  or  return,  invoking 
the  principle  "  reddendum  singula  singulis."""] 

50   Straccy  v.   Nelson,  12  M.  &  208.     But  it  would  seem  that  the 

W.  535  ;  lo  L.  J.  Ex.  97.  principle  was  rallier  that  stated  in 

*'  U.  S.  V.  Gadsby,  1  Cranch,  C.  ^  414,  that  general  j)n)visi()iis  at  the 

Ct.  55  ;  U.  S.  V.  Simms,  1  Cranch,  end  apply  to  each  of  several  i)reeed- 

252.  ing  particular  ones.    And  see  ante,. 

92  Com'th  V.  Cooke,  50  Pa.  St.  §  25G. 


417]  IMPLICATIONS.  587 


CHAPTER  XY. 

Implications  and  Intendments.     Directory  and  Impera- 
tive Provisions.     Impossibilities.     Waiver. 


§  417.  Incidents  and  Consequences  Impliedly  Sanctioned  by  Act. 

§  418.  Implied  Grant  of  Powers.     Corporations,  etc. 

§  419.  Powers  implied  in  Grant  of  Jurisdiction. 

§  420.  Other  Implications. 

§  421.  Implied  Exercise  and  Expression  of  Legislative  Judgment. 

§  422.  Implications  not  Extended  beyond  what  is  Necessarily  Implied. 

§  423.  Protecticm  Implied  in  Grant,  etc.,  of  Powers,  Duties,  etc. 

§  424.  Implied  Obligations. 

§  425.  One  Duty  may  Imply  Another  in  Same  Person. 

§  426.  Right  or  Duty  in  One  may  Imply  Duty  in  Another. 

§  427.  Grant  of  Right  to  One  may  Imply  Right  in  Another. 

§  428.  Implied  Conditions  in  Grant  of  Judicial  Powers. 

§  430.  New  Jurisdiction  how  to  be  Exercised. 

§  481.  Distinction  between  Imperative  and  Directory  Provisions. 

§  432.  Tests.     Negative  and  Affirmative  Words. 

g  433.  Duty — Privilege. 

§  434.  Regulations,  etc.,  of  Acts  conferring  Powers,  Privileges,    etc., 

Imperative. 
§  435.  Acts  Relating  to  Judicial  Procedure. 
§  436.  Regulations,   etc.,    of   Acts  relating  to  Performance  of  Public 

Duties  Directory. 
§  437.  Matters  of  Procedure  by  Public  Officers. 
§  438.  Effect  of  Public  Inconvenience  and  Private  Injury. 
§  440.  Remed}-  for  Omission  of  Directory  Duty. 
§  441.  Impossibilities  in  the  Nature  of  Things. 
§  442.  Impossibilities  arising  from  Acts  of  Parties. 
§  443.  Impossibilities  upon  which  Jurisdiction  is  Conditioned. 
§  444.  Waiver  of  Statutory  Provisions  as  to  Rights  and  Contracts. 
§  445.  Waiver,  etc.,  as  to  Procedure  and  Practice  in  Courts. 
§  446.  No  Waiver  as  against  Public  Policy  and  Rights  of  Others. 
§447.  No  Waiver  of  Want  of  Jurisdiction. 
§  448.  Estoppel  from  Claiming  Benefit  of  Statute. 

§  417.  Incidents  and  Consequences  Impliedly  Sanctioned  by  Act., 
— Passing  from  the  interpretation  of  the  language  of  Statutes, 
it  remains  to  consider  what  intentions  are  to  be  attributed  to> 


^88  IMPLICATIONS.  [§    -117 

the  Legislature,  where  it  litis  expressed  none,  on  qiiestiona 
necessarily  arising  out  of  its  enactments. 

Although,  as  already  stated,  the  Legislature  is  presumed 
to  intend  no  alteration  in  the  law  beyond  the  immediate  and 
specific  purposes  of  the  Act,  [and  within  the  limits  imposed 
by  the  operation  of  that  principle,]  these  purposes  are  con- 
sidered as  including  all  the  incidents  or  consequences  strictly 
resulting  from  the  enactment.  Thus,  an  Act  which  declared 
an  ofifence  felony  would  impliedly  give  it  all  the  incidents  of 
felony ;  and  it  would  make  it  an  offence  to  be  an  accessory 
before  or  after  it  {a).  [Where  a  statutory  action  as  to  one 
subject-matter  is  extended  by  a  subsequent  statute  to  a  new 
case,  everything  annexed  and  incident  to  the  action  by  the  first 
statute  is  equally  extended.']  Where  trustees  were  appointed 
by  Statute  to  perform  duties  which  would,  of  necessity, 
■continue  without  limit  of  time,  it  was  held  tliat  from  the 
nature  of  the  powers  given  to  them,  they  were  impliedly 
made  a  corporation  (i).  When  a  local  authority  had  statutory 
powers  to  "  recover"  expenses,  it  was  thereby  also  impliedly 
empowered  not  only  to  sue  for  them,  but  to  sue  in  its 
collective  designation,  although  not  incorporated  (e).  The 
Act  which  gave  the  Admiralty  Court  jurisdiction  over  all 
claims  for  necessaries  supplied  to  foreign  ships,  impliedly 
created  a  maritime  lien  on  the  ship,  which  follows  it  in  the 
hands  of  a  purchaser  (rZ).  The  Bankruptcy  Acts,  in  requir- 
ing a  bankrupt  to  answer  self-criminating  questions  relative  to 
his  trade  and  affairs,  made  his  answers  subject  to  the  general 

(a)  1  Hale,  632,  704 ;  1  Hawk.  c.  Assessors  v.  11.  R.  Co.  (N.  J.)  Id. 

38,    s.    18;    Coalbeavers'   Case,    1  420. 

Loach.  66  ;  Gray  v.  11.,  11  CI.  &  F,  (b)  Exp.    Newport  Trustees,    16 

427.  Sim.  346  ;  comp.  Williams  v.  Lords 

1  Baltimore,   etc.,  R.   R.  Co.   v.  of  Admiralty,  13  C.  B.  420;  3  L. 

Wilson,    3    W.    Va.     528.       And  M.  &  P.  456  ;  Rivers  v.  Adams,  3 

where  an  act  exempts  from  taxa-  Ex.  D.  361.    [See,  similarly,  Barnet 

tion  the  property  of  a  certain  cor-  v.    School    Dir's,    6    Walts     &    S. 

poration    which   it  authorizes  the  (Pa.)  46  ;  Kingley   v.    Sell.    Dir's, 

same  to  acquire,  property  acquired  3  Pa.  St.  28.     And  see  Overseers  v. 

by  the  coi  poration  under  authority  Kline,  9  Id.  317,  219.] 

given    by    a     subsequent    act     is  (c)  Mills  v.   Scott,  L.  R.  8  Q.   B. 

equally  exempt :  Slate  v.  Soc'v  for  496. 

Est.  Usef.  Manuf's  (N.  J.)4  Centr.  ((/)  3  &  4  Vict.  c.  65,  s.  6  ;  The 

Rep.  139.     A  reservation  of  ])ower  Ella  Clark,  Br.   &  L.  32,  32  L.  J. 

to  alter  a  charter  gives  the  Legis-  P.  M.  &  A.  211  ;  The  Two  Ellens, 

lature   the   right   to   impose   addi-  L.  R.  4  P.  C.  161. 
J;ional    taxation  :     State      B'd     of 


§   417]  IMPLICATIONS.  589* 

rules  of  the  law  of  evidence,  and  consequently  admissible  in 
evidence  against liim,  even  in  criminal piucecdings.  To  hold 
otherwise  would  have  been,  in  effect,  to  su})pope  that  the 
Legislature,  in  expressly  changing  the  law  which  had  hitherto- 
protected  him  from  answering,  intended  also  to  make  the 
further  change,  by  mere  implication,  of  suspending,  pro 
tanto,  the  ordinary  rule  as  regards  the  admissibility  of  self- 
prejudicing  statements  {a).  [So,  in  Pennsylvania,  an  affida- 
vit of  defence  filed  by  defendant  under  the  statutes  requiring 
such  an  affidavit,  in  order  to  prevent  summary  judgment  in 
favor  of  plaintiff,  as  by  default,  may,  upon  analogy  with  the- 
practice  as  to  answers  in  chancery,  be  read  in  evidence,  by 
the  plaintiff",  upon  the  trial .^]  The  Judgments  Extension 
Act  of  1868,  which  provided  for  the  execution,  in  Scotland 
and  Ireland,  of  judgments  recovered  in  England,  was  con- 
sidered as  having  impliedly  abolished  the  rule  of  procedure- 
which  required  that  a  plaintiff  residing  out  of  the  jurisdiction 
should  give  security  for  costs  ;  the  logical  reason  for  the 
rule  (which  was,  that  if  the  verdict  were  against  the  plaintiff,, 
he  would  not  be  within  the  reach  of  the  process  of  the  Court 
for  costs),  having  been  swept  away  by  the  enactment  (&).. 
[So,  where  an  act,  passed  in  1874,  establishing  a  new  road 
law  for  a  certain  county,  expressly  repealed  an  act,  passed 
in  1870,  as  to  keeping  in  repair  the  public  roads  of  that 
county  it  was  held  that  another  act,  approved  contempor- 
aneously with  that  of  1870,  as  to  the  turning  over  of  road 
money  to  the  county  commissioners,  must  fall  with  the 
repeal  of  that  act.^  And  as  to  all  implications,  it  is  to 
be  boi-ne  in  mind  that  whatever  is  implied  in  a  statute, 
whether  in  the  way  of  a  grant,  of  a  restriction,  or  of  a  con- 
dition, is  as  much  a  part  of  the  enactment  as  what  is 
expressed  therein/] 

{a)  R.  V.  Scott,  D.  &  B.  47,  25  L.  ^  Prince  George's  Co.  v.  Laurel, 

J.  128.  51  Md.  457. 

2  Bowen  v.  DeLattre,  6  Whart.  ■*  Hanchett  v.  Weber,  17  111.  App. 

(Pa.)   430.     But    see    Maynard    v.  114.     Where  an  act  provided,  lliat, 

Bank,  98  Pa.  St.  250,  tbat  it  is  not  when    any    suit    should    fail,    by 

to  be  considered  as  constitutiug  a  reversal  on  writ  of  error,   motion, 

part    of    the    evidence,    unless   so  in    arrest   of     judgment,    plea    in 

offered.  abatement,  or  on  demurrer,    "  and 

{b)  Raeburn  v.  Andrews,  L.  R.  9  the  merits  of  the  cause  shall  not  be- 

Q.  B.  118.     [See  ante,  §  209.]  tried,"  plaintiff    might  begin  an- 


590 


IMI'I.ICATIONJ 


L§418 


§41S.  Implied  Grant  of  Powers,  Corporations,  etc. —  h\  the  same 
way,  when  powers,  ]jrivi]eges,  or  property  are  granted  by 
statute,  everj'thing  indispensable  to  their  exercise  or  enjoy- 
ment is  impliedly  granted  also,  as  it  would  be  in  a  grant 
between  private  persons.  Thus,  as  by  a  private  grant  or 
reservation  of  trees,  the  j-iowcr  of  entering  on  the  land 
where  they  stand,  and  of  cutting  them  down  and  carrying 
them  away,  is  impliedly  given  or  reserved  ;  and  by  thegrant 
of  mines,  the  power  to  dig  them  (a)  ;  so  under  a  Parliament- 
ary authority  to  build  a  bridge  on  a  stranger's  land,  the 
grantee  tacitly  acquires  the  right  of  erecting,  on  the  land, 
the  temporary  scaffolding  which  is  essential  to  the  execution 
of  the  work  (h).  An  Act  which  simply  creates  a  corpora- 
tion, impliedly  gives  it  the  legal  attributes  of  one,  anu)ng 
Vv'hich  is  a  general  power  to  make  contracts  (c).  [Even 
where  a  corporation  is  created  with  certain  specificsdl}- 
enumerated  powers,  it  possesses,  in  addition,  by  implication, 
all  such  as  are  either  necessarily  incident  to  those  specified, 
or  essential  to  the  expressed  purposes  and  objects  of  the 
corporate  existence/  "  In  this  country,  all  corporations, 
whether  public  or  private,  derive  their  powers  from  legisla- 
tive grant,  and  can  do  no  act  for  which  authority  is  not 
expressly  given,  or  may  not  be  reasonably  inferred.  But, 
if  we  were  to  say  that  they  can  do  nothing  for   which  a 


other  within  a  j'car,  etc.  ;  it  was 
held  that  the  intention  of  the  Leg- 
islature was  to  reach  all  cases 
where  a  suit  was  brought,  but  the 
merits  of  it  failed  of  trial,  without 
the  i)laintifT's  default  ;  and  tliat 
consequently  the  case  of  a  discon- 
tinuance of  a  cause  for  the  second 
time,  through  the  absence  of  the 
justice,  though  not  within  the 
terms  of  tlu; enactment,  was  within 
its  intention  :  Phelps  v.  AVood,  9 
Vt.  ;5!(9.  Comp.  ante,  §  327,  note 
130;  also  §  110, 

(a)  Shep.  Touchst.  89  ;  Roll.  Ah. 
Incidents,  A. 

(%)  The  Clarence  R.  Co.  v.  The 
G.  N.  of  England  R.  Co.,  U  M.  & 
W.  721.  Fee,  also,  lie  Dudley,  8 
Q.  B.  D.  80. 

(c)  See  Ashbury,  »&c.  Co.  v. 
Riche,  L.  R.  7  H.  L.  653  ;  Brough- 


ton  V.  Manchester  Waterworks,  3 
B.  &  A.  12  ;  Shears  v.  Jacobs,  L. 
R.  1  C.  P.  5o,  and  the  cases  collect- 
ed in  S.  of  In.'land  Colliery  v. 
Wardle.  L.  K.  3  C.  V.  403. 

'-  Le  CouteuLx  v.  Buffalo,  33  N. 
Y.  333  ;  jMemphis  v.  Adams,  9 
Heisk.  (Tenn.)  518.  See  Willianif?- 
port  V.  Coni'th,  84  Pa.  St.  487,  as 
to  the  implied  power  of  municiiiali- 
ties  to  borrow  money  and  issue 
bonds  therefor, — a  power,  which, 
as  to  private  or  tradingcorjiorations, 
niaj',  as  a  general  proposition,  be 
conceded,  unless  restrained  by  tiieir 
charters  or  the  law  of  the  land: 
Ibid.,  \\,  493,  and  may  be  said  to 
be  within  the  implied  powers  of  a 
municipal  corporation  :  Ibid,  p., 
494.  Sec  1  Dill.,  Mun.  Corp.,  § 
89. 


§   418]  IMPLICATIONS.  591 

^va)•rant  could  not  be  found  in  the  language  of  their  charters, 
we  should  deny  them,  in  some  cases,  the  power  of  self- 
preservation,  as  well  as  many  of  the  means  necessary  to 
effect  the  essential  objects  of  their  incorporation.  And 
therefore,  it  has  been  an  established  principle  in  the  law  of 
corporations,  that  they  may  exercise  all  the  powers  within 
the  fair  intent  and  purpose  of  their  creation,  which  are 
reasonably  proper  to  effect  the  powers  expressly  granted.'" 
JS^or  should  anything  that  is  fairly  incidental  to  those  things 
which  the  Leffislature  has  authorized  be  held  ultra  vires, 
unless  expressly  prohibited.'  Thus  it  has  been  decided 
that,  6.  g.,  the  grant  to  a  municipality  of  power  to 
*'  prevent  and  extinguish  fires,"  granted,  by  implication,  the 
power  to  erect  a  fire-engine  house  ;'  of  power  to  "  make  police 
regulations  or  needful  by-laws,"  a  power  to  purchase  tire- 
engines  f  of  power  to  contract  "  for  lighting "  streets,  a 
power  to  acquire  street  fixtures,  including  gas-pipes  and 
lamp-posts,  for  that  purpose  ;'"  and  a  grant  of  power  to  a 
railroad  company  to  purchase  land  in  order  to  procure  stone 
and  other  material  necessary  for  the  construction  of  its  road, 
a  grant  of  power  to  purchase  land  in  order  to  get  cross-ties 
and  fire-wood.''  Indeed,  it  may  be  generally  said,  that, 
whenever  a  pow-er  is  given  by  statute,  everything  necessary 
to  make  it  effectual,  everything  essential  to  the  exercise  of 
it,  is  given  by  implication."  Thus,  under  the  Pennsylvania 
act  of  1848,  which  declared  that  property  accruing  to  a 
married  woman  should  be  "  owned,  used  and  enjoyed  "  by 
her  as  her  separate  property,  it  was  held,  that,  as  the  use  and 
enjoyment  referred  to  must  be  such  as  were  consistent  with 
the  nature  and  kind  of  property  accrued  to  the  woman, 
where  it  consisted,  e.  g.,  of  a  store  of  liquors  and  cigars, 
which  could  not  be  used    and   enjoyed  in  the  same  manner, 

6  Bridgeport   v.    R.    R.    Co.,   15  ^  Van   Sicklen  v.  Burlington,  27 

Conn.   475,    501.     As    to    implied  Vt.  70. 

powers  of  Railway  Companies,  see  '"  Nelson  v.    La  Porte,   33  Ind. 

Pierce,  Railroads.  Ch.  xix.  258. 

'  Atty.-Genl.  v.  Great  East.  Rjy.  "  Mallett  v.    Simpson,  94  N.   C. 

Co..  L.  R.  5  xVpp.  Cas.  473.      And  37. 

see    Cook    v.     Hamilton    Co.,      6  '- New  York  v.  Sands,  105  N.  Y. 

McLean,  112.  210  ;   Com'th    v.    Conyngliam,    66 

«  Clarke  v.   Brookfield,  81  Mo.  Pa.  St.   91)  ;  Witherspoon  v.  Dun- 

503.  lap.  1  McCord  (S.  C.)  546. 


592 


IMPLICATIONS. 


[§  41S 


as,  e.  g.^  hoiiscliold  furniture  or  a  dwelling  house,  but  were 
merchandize,  and  as  it  was  in  the  nature  of  merchandize  to- 
be  sold  and  exchanged,  the  power  to  own  and  use  and  enjoy 
implied,  as  to  such  property,  the  right  to  trade  by  them, — 
in  a  word,  made  women  merchants."  The  same  language 
applied  to  i-eal  property  was  held  to  give  her,  by  implication, 
the  right  to  contract,  and  make  her  estate  liable,  for  neces- 
sary repairs  and  improvements  ;  for  the  enactment  would 
be  vain  without  such  a  power."  So,  a  power  given  to  a 
married  woman  to  engage  in  business  was  held  to  enable  her 
to  borrow  money  and  to  purchase  real  estate  wherewnth  and 
wherein  to  commence  business,  as  well  as  to  contract  debts 
in  the  prosecution  of  such  business  when  established. '^  And 
.when  an  act  directs  a  thing  to  be  done,  e.  g.,  an  increase  of 
the  salaries  of  municipal  officers,  it  authorizes  impliedly, 
without  doing  so  in  terms,  the  performance  of  whatever  is 
necessary  to  carry  the  direction  into  effect,  i.  e.,  an  iwcrease 
of  taxation  necessary  to  meet  the  additional  burden  imposed.**" 
An  act  authorizing  the  Comptroller  of  a  county  to  create  a 
public  fund  or  stock  for  certain  specified  purposes,  impliedly 
authorized  that  officer  to  employ  an  agent  to  negotiate  the 
county  bonds  provided  for  by  the  act,  to  make  an  agreement 
with  him  for  compensation,  and  to  pay  him  out  of  the  pro- 
ceeds of  the  bonds."] 


13  Wieniiiu  v.  Aiuleison,  42  Pa. 
St.  318.  Whore  an  act  diipcted 
the  trcasuiLT  of  the  commonwealth 
to  assign  to  a  certain  corporalion 
all  the  shares  of  its  stock  owned 
by  the  commonwealth,  etc.,  the 
corporation  ihereupon  to  "hold 
and  dispose  of  llie  shares  of  stock 
so  assigned  to  it  as  its  abso'.nte 
properl}',"  it  was  held  that  the  cor- 
poral ioii  might  divide  the  shores 
among  its  stockholders  :  Com'th 
V.  B.  ct  A.  U.  K.  Co.,  142  Mass. 
146. 

'••  Lippincoti  v.  Leeds,  77  Pa.  St. 
420,  422. 

'^  Frecking  v.  Rolland,  53  N.  Y. 
422.  And  see  Zurn  v.  Nocdel, 
113  Pa.  St.  336  ;  Bovard  v.  Ketter- 
ing, 101  Id.  181.  The  grant  to 
married  women  of  power  to  make 
notes  has  been  held  to  imply  the 
power   to   give   bank    cliecks   and 


dne-bills  :  Wilderman  v.  Rodgers,. 
(Md.)5  Centr.  liep.  573  (see  as  to 
the  inclnsiou  of  cliecks  in  the 
phrase  notes,  etc. :  Walker  v. 
Geisse,  4  Whart.  (Pa.)  252  ;  Hill  v. 
Gaw,  4  Pa.  8t.  493);  and  post, 
dated  checks  :  Nash  v.  Mitchell,  8 
Hnn  (N.  Y.)  471  ;  and  to  e.\ecute 
notes  in  blank  :  Morrison  v. 
Thistle,  67  Mo.  596. 
16  Green  v.  New  York,  2  Hilt. 
(N.  Y.)  203. 

"  New  York  v.  Sands,  105  N. 
Y.  210.  Under  an  act  vesting  in 
District  Attorneys  "  the  dnlies  now 
b\'  law  to  !)('  performed  i)y  deputy 
attorney-generals,"  it  was  held  that 
a  writ  of  rpio  warranto  might  issne 
on  the  information  of  a  District 
Attorney  to  determine  the  right  of 
certain  "persons  to  act  as  school 
directors  :  Gilrov  v.  Com'th,  1(1.) 
Pa.  St.  484. 


§419] 


IMPLICATIONS. 


59i 


§  419.  Powers  Implied  in  Grant  of  Jurisdiction.— Where  an 
Act  confers  a  jurisdiction,  it  impliedly  grants,  also,  the 
power  of  doing  all  such  acts,  or  employing  such  means,  a&- 
are  essentially  necessary  to  its  execution.  Cui  jurisdictio  data 
est,  ea  quoque  concessa  esse  videntur,  sine  quibus  jurisdiction 
explicari  non  potuit  {a).  So,  where  an  inferior  Court  is- 
empowered  to  grant  an  injunction,  the  power  of  punishing' 
disobedience  to  it  bj'  commitment  is  impliedly  conveyed  by 
the  enactment ;  for  the  power  woidd  be  useless  if  it  could 
not  be  enforced  [b).  [It  is  said,  that,  independently  of  any 
express  statutory  grant  of  authority,  and  as  a  necessary 
incident  to  their  existence  and  the  exercise  of  the  jurisdiction 
conferred  upon  them,  courts  of  record  have  the  power  to 
make  rules,  not  contrary  to  law,  for  the  regulation  of  their 
business,"  and  to  punish  contempts."]  And  it  is  laid  down 
that  where  a  statute  empowers  a  justice  to  bind  a  person  over, 
or  to  cause  him  to  do  something,  and  the  person,  in  his  pres- 
ence, refuses,  the  justice  has  impliedly  authority  to  commit 
liim  to  jail  till  he  complies  (<?). 


(a)  Dig.  2,  1,  2.  [Thus,  where 
an  act  conferred  upon  the  comp- 
troller the  power  to  cancel  the 
sale  of  real  estate  for  state  taxes 
and  refund  the  purchase-money, 
wherever  sucli  sale  was  invalid 
and  ineffectual  to  pass  title,  and, 
upon  receiving  evidence  thereof, 
required  him  so  to  do,  it  was  held 
that  there  was  imf)lied  the  power 
to  receive  evidence  of  the  defect 
and  to  act  thereon,  to  receive 
athdavits  and  administer  oaths; 
that,  therefore,  the  exercise  of  the 
power  was  not  confined  to  cases  of 
invalidit}^  appeariog  on  the  face 
of  the  proceedings  ;  and  that  the 
comptroller  could  be  required  by 
mandamus  to  hear  and  determine 
an  application  properly  made  to 
him  for  cancellation,  etc..  under 
the  act  :  People  v.  Chapin.  105 
N.  Y.  809  ;  7  Centr.  Rep.  293.] 

ib)  Exp.  Martin,  4  Q.  B.  D.  212. 
[And  a  statulorj*  provision  making 
a  decree  for  a  deed  to  operate  as  a 
conveyance  does  not  take  away 
the  jurisdiction  of  the  court  to 
enforce  the  execution  of  the  con- 
veyance by  process  of  attachment: 
Kandall  v.  Pryor,  4  Ohio,  424.] 

38 


18  Fullerton  v.  Bank,  1  Pet.  604  ; 
Barry  v.  Randolph,  3  Binn.  (Pa.) 
277  ;  Vanatta  v.  Anderson,  Id. 
417  ;  Boas  v.  Nagle,  3  Serg.  &  K. 
(Pa.)  253  ;  Risher  v.  Tliomas,  2 
Mo.  98  ;  Brooks  v.  Boswell,  34  Id. 
474  ;  Kennedy  v.  Cunningham,  2 
]Metc.  (Ky.)  538. 

'» JJ.  S.  V.  New  Bedford  Bridge. 
1  Woodb.  &  M.  401.  See,  also. 
Gates  V.  M'Daniel,  3  Port.  (Ala.) 
356  ;  Randall  v.  Pryor,  4  Ohio. 
424  ;  Ai-mstrong  v.  Beaty,  Cam.  & 
N.  (N.  C.)  33;  and  Lining  v.  Bent- 
ley,  2  Bay  (S.  C.)  1,  as  to  such 
power  in  justices  of  the  peace  :  but 
see  contra,  Albriglit  v.  Lapp,  26 
Pa.  St.  99  ;  R.  v.  Bartlett,  2  Sess. 
Cas.  291.  And  see  upon  this  sub- 
ject, Cooley,  C.  L.,  390,  note  3. 
A  surrogate  may  punish  for  con- 
temptuous refusal  to  appear  and 
give  evidence,  but  a  deraultlng. 
witness  cannot,  in  any  case  W'hat- 
ever,  be  brought  in  by  attachment, 
forcibly,  "  to  testify  :"  Perry  v.. 
Mitchell,  5Denio  (N.  Y.)  537. 

(c)  2  Hawk.  c.  16,  s.  2.  [An 
act  investing  a  court  with  power 
of  deciding  cases  of  contested  elec- 
tion was,  in  Handy  v.  Hopkins,  50> 


594 


IMPLICATIONS. 


[^  4l>0 


§  420.  other  Implications. —[All  act  exteildi'iil^  tlic  limits  of 
a  cit}'  so  as  to  emhrace  within  its  honndarios  certain  lands 
used  only  for  farininfi^  purposes,  hy  necessary  implication 
makes  these  lands  suhjectto  taxation  for  municipal  objects.'' 
Ap.  act  making  the  judgment  of  the  Common  Pleas  upon 
certiorai'i  to  a  justice  of  the  peace  final,  as  regards  affirmance 
or  reversal  of  the  justice's  judgment,  makes  the  former  final 
also  as  to  the  subsequent  allowance  of  a  writ  of  execution 
for  costs  accrued  on  the  certiorari.'"]  Wliere  an  Act  pro- 
vided that  the  costs  and  expenses  incident  to  passing  it, 
should  be  paid  by  the  Metropolitan  Board,  but  did  not  state 
to  wh.om  they  should  be  paid,  it  was  held  that  they  were 
payable  to  the  promoters  oidy,  and  not  to  agents  and  other 
persons  employed  by  them  {a).  [So,  where  no  time  is  fixed 
by  a  statute  within  which  an  appeal  allowed  by  it  is  to  be 
taken,  it  is  Siiid  that  a  reasonable  time  is  to  be  understood  as 
allowed,"  or  the  time  prescribed  by  a  general  law  regulating 


Md.  157,  hfld  to  tjive  it  autiiority 
to  decide  all  matters  and  questions 
involved  in  such  contest,  and, 
having  decided  asxainst  the  pre- 
tensions of  the  contestants,  to 
declare  that  conte.stees  were  not 
duly  elected,  and  that  the  office 
was  vacant.  See,  also,  Anderson 
V.  Levelv,  58  Id.  192.  Comp. 
Ellingham  v.  Mount.  43  N.  J.  J.. 
470,  tlial  a  court,  under  a  power  of 
revising  contested  elections,  is  con- 
fined to  the  grounds  of  contest 
enumerated  in  the  statute,  and 
cannot,  e.  g.,  adjudge,  in  such  a 
proceeding,  tiie  constitutionalitj^ 
of  the  law  under  which  the  elec- 
tion was  held.  And  §  527.  n.  179.1 
-»  Kelly  V.  Pittshurgh,  85  Pa. 
St.  170.  See  the  dissenting  opin- 
ion of  Agnew,  C.  J.,  concurred  in 
bv  Sterrett,  J. 

■■-'  Palmer  v.  Lacock,  107  Pa.  St. 
34G.  As  to  the  right  to  costs  in 
such  cases,  see  llartman  v. 
Bechtel,  1  Woodw.  (Pa.)  140.  An 
act  declaring  that  tlie  returns  of 
certain  elections  "shall  be  sul)ject 
to  the  int]uiry,  determinaiioii  and 
jvdgment  of  the  Court  of  (Jommon 
Pleas,"  who  shall  "  proceed  on  the 
merits  tliereof,  and  shall  deternunc 
final!!/   thereon   .  .  .  and  .  .  .    shall 


immediateli/  cevtUy  to  the  Governor 
the  decree  .  .  .  and  in  whose  favor 
such  contested  election  shall  be 
tcnnivnfid ;  and  the  Governor 
shall  then  issue  the  commission," 
etc., — necessarily  implies  the  final- 
ity of  the  decree  of  said  court  and 
the  absence  of  revisory  power, 
even  hy  certiorari,  in  the  Supreme 
Court  :  Carpenter's  Case,  14  Pa. 
St.  48G  ;  just  as  a  provision  making 
city  councils  the  "  linal  "  judges 
of  election  returns  ousts  the  juris- 
diction of  the  courts  and  makes 
such  councils  the  sole  tribunal  to 
determine  1  lie  legality  of  the  elec- 
tif)n  of  their  members  :  Sellcck  v. 
Com.  Council  of  S.  ISTorwalk,  40 
Conn.  o5n.  But  see  as  to  a  pro- 
vi>ion  making  c;ity  councils  judges 
(jf  election,  l)ut  not  declaring  their 
decision  final,  nor  making  any 
provision  for  contesting  it,  Echols 
v.  State,  50  Ala.  lot,  where  such 
decision  was  held  to  confer  only  a 
prima  facie  right  to  the  oliice 
until  ousted  b}'  proper  legal  pro- 
cess in  the  nature  of  quo  warranto. 

(a)  Wyatt  v.  Metrop.  B.  of 
Works,  11  C.  B.  N.  S.  744. 

■■'•-'  Moore  v.  Fields,  1  Greg.  317. 
But  see  ante,  §  20, 


§  421]  IMPLICATIONS.  595 

appeals  is  to  be  regarded  as  impliedly  adopted."]  A  private 
Act  which,  after  annexing  a  rectory  to  the  deanery  of  Wind- 
sor, recited  that  the  dean's  residence  at  the  latter  place  would 
oblige  his  frequent  absence  from  the  rectory,  and  required 
him  to  appoint  a  curate  to  reside  there,  was  deemed  to  give 
him,  by  implication,  an  exemption  from  residence  {a). 

§  421.  Implied  Exercise  and  Expressioa  of  Legislative  Judg- 
ment.—[The  rule,  that,  whatever  is  necessarily  or  logically 
involved  in  an  enactment  is  implied  by  it,  with  the  same 
force  as  if  it  were  expressed,  extends  also  to  those  cases 
where  the  right  of  legislation  is,  by  the  constitution,  con- 
fined to  occasions  in  which  the  existence  of  certain  facts 
shall  have  been  first  ascertained  by  the  Legislature.  It  has 
been  seen  that  a  legislative  declaration  that  a  certain  im- 
provement authorized  by  it  is  for  the  benefit  of  adjacent 
landholders  who  are,  by  the  act,  subjected  to  taxation  to 
defray  its  expenses,  is  conclusive."  Similarly,  the  decision 
of  the  Legislature  that  a  railroad  is  required  by  public 
necessity  is  implied  in  a  grant  by  it  of  a  charter  to  construct 
the  same  and  is  conclusive."  And  where  the  constitution 
confines  the  right  of  the  Legislature  to  grant  special  charters 
to  cases  for  which  it  may  deem  the  general  laws  inadequate, 
the  exercise  of  the  judgment  is  implied  in  the  mere  passage 
of  such  a  charter  without  any  express  declaration  to  that 
effect."*  So,  where  the  constitution  of  a  state  provided  that 
no  act  of  the  Legislature  of  a  public  nature  should  take  effect 
until  July  4,  next  after  its  passage  at  a  regular  session,  and 
that  acts  passed  at  a  special  session  should  go  into  operation 
ninety  days  after  the  adjournment  of  the  Legislature  that 
passed  them,  but  added,  "  If  the  general  assembly  deem  any 
law  of  immediate  importance,  they  may  provide  that  the  same 
shall  take  effect  by  publication  in  newspapers  of  the  State  ;" 
it  was  held  that  a  direction  to  that  effect  implied  such  a 
determination."] 

23Statev.  Dean,9Ga.  405.  comp.  ^e  Johnson   v.    Ry.    Co.,   23   111. 

ante,  §  327.  203. 

(a)  Wright  v.    Legge,  6   Taunt.  "  g^^te  v.  Donehey,  8  Iowa,  396. 

48.  It  was  there  also  held  that  the  act, 

2*  People  V.  Lawrence,  36  Barb,  as   publisbed  in   the   newspapers, 

(N.  Y.)  177;  ante,  §  375.  correspoiuiing  with  the  act  on  tile 

2*  State  V.  Noyes,  47  Me.  189.  in   the  otHce   of   the  Secretary   of 


500  IMPLICATIONS.  [§  422* 

§  422.  Implications  not  Extended  beyond  what  is  Necessarily 
Implied. — l>ut  the  extension  of  an  enactment  bj  implication  is 
contined  to  its  strictly  necessary  incidents  or  logical  conse- 
quences. When,  for  instance,  a  statute  requires  the  perform- 
ance of  a  service,  it  implies  no  provision  that  the  person  per- 
forming it  shall  be  remunerated  (a).  [Nor,  where  the  usual 
compensation  is  reduced,  is  there  any  implication  that  the 
claim  for  the  reduced  compensation  shall  have  precedence  of 
others.""]  An  Act  which  emjDowered  justices  to  discharge  an 
apprentice  from  his  apprenticeship,  if  ill-treated  by  his 
master,  would  not  inferentially  empower  them  to  order  a 
return  of  the  premium  ;  for  however  just  it  n)ight  be  that 
such  a  return  should  be  made,  and  convenient  that  it  should 
be  ordered  by  the  tribunal  which  cancelled  the  indenture, 
such  a  power  was  not  the  iogical  or  necessary  Incident  oi*  result 
of  that  which  was  expressly  conferred  (b).      Although  the  33 

6  34  Vict.  c.  93  absolved  a  liusband  from  liabilit}'  for  the 
antenuptial  debts  of  his  wife,  and  made  the  latter  capable  of 
being  a  trader,  and  "  liable  to  be  sued  for,"  and  her  sej:)arate 
property  subject  to  satisfy,  her  debts,  "  as  if  she  had  continued 
unmarried  ;"  a  married  woman  having  separate  property,  was 
not,  as  a  logical  consequence  of  such  liabilities,  liable  to  be 
made  a  bankrupt  (c).  [Similarly,  under  the  ISIew  Jersey 
married  woman's  act,  which  gave  her  merely  the  right  to  hold 
lier  property  free  from  the  control  of  her  husband,  it  was 
held  that  the  jus  disponendi  was  not  a  necessary  incident  of 
the  jus  tenendi."  And  under  a  similar  act  in  Pennsylvania, 
which  gave  to  married  women  the  power  to  make  their 
property  liable  for  the  payment  of  necessaries  purchased  by 
them,  it  was  held  that  there  was,  in  this  grant,  no  necessary 
implication  of  power  to  give  written  obligations  for  the  pay- 
ment of  debts  thus  contracted,  or  to  confess  judgment  tliere- 

Sl.alc,  wus  to  be  decnied   the  l:iw,  (b)  R.    v.   Viindelecr.  1   Slia.  69;. 

allhoiigh  differing-  I'rdin  the  act  as  East  v.  Pell,  4  M.  &  W.  G65. 

pubiisiied  in  the  session  laws.  (c)  Exp.   Holinnd,  L.    R.    9   Ch. 

(rt)P<jr  Lord  Abinuer  in  Jones  V.  307;  Exp.  Jones.  12  Ch.   D.   484. 

Carmaithen,  8  M.  &W.  COo  ;  R.  v.  See  Guthrie   v.   Fisk,  3   B.    &   C. 

Hull.  2  E.  &  B.  182  ;  R.  v.  Allday,  178;  Ee  Frankland,  L.  R.  8  Q.  B. 

7  Id.   799.     See,  also,  Alresford  v.  18. 

Scott,  7  Q.  B.  D.  210.  "  Naylor  v.  Field,  29  N.  J.  L. 

^»  People  V.  Williams,  8  Cal.  97.      287. 


^    423]  IMPLICATIONS.  507 

for.'*  Nor  does  an  act  giving  to  the  wife  the  fruits  of  lier 
own  hibor  imply  a  right  in  her  to  abandon  her  liusband, 
without  his  consent,  for  the  purpose  of  acquiring  earnings 
for  her  separate  use,  or  to  neglect  or  avoid,  for  such  purpose, 
the  duties  the  marriage  relation  imposes  upon  her.^'  A 
statute  giving  half  the  penalty  imposed  by  it  to  the  com- 
■plainant  does  not  impliedly  give  the  latter  authority  to  bring 
an  action  for  the  penalty  in  his  own  name.^''  Nor  would  the 
grant  of  a  power  to  construct  a  railway  on  one  side  of  a  town 
-imply  a  right  to  make  a  temporary  location  on  the  other 
■side.'^  Nor  does  a  power  of  sale  given  to  municipal  officers 
-imply  a  power  to  exchange  or  barter.'^] 

§  423.  Protection  Implied  in  Grant,  etc.,  of  Powers,  Duties,  etc 
— If  the  Legislature  authorizes  the  construction  of  a  w^ork 
•or  the  use  of  a  particular  thing  for  a  particular  purpose,  the 
permission  carries  with  it  impliedly  an  exemption  from 
'responsibility  for  any  damage  arising  from  the  use,  without 
negligence  ;  as,  for  instance,  when  haystacks  are  lircd  by 
locomotive  engines  plying  on  railways  {a).  So  trustees  and 
•official  persons  who  are  authorized  to  execute  a  work,  such 
as  to  raise  a  road,  to  lower  a  hill,  or  to  make  a  drain,  are 
impliedly  authorized,  if  necessary  for  the  due  execution  of 
their  task,  to  prejudice  the  rights,  or  injure  the  property  of 
third  persons  (b).     But  when  an  Act  confers  such  powers, 

30  Glyde  v.  Keister,  33  Pa.  St.  10  C.  B.  N.  S.  89  ;  31  L.  J.  IS  ; 
85  ;  Bninner's  App.,  47  Id.  67,  74.  BIyth  v.  Birmingham  Water-works 
See,  also,  Swing  v.  Woodruff,  41  Co.,  7  E.\.  312; "Dunn  v.  Birming- 
N.  J.  L.  469.  But  see  Williams-  ham  Canal  Co.,  L.  R.  8  Q.  B.  42; 
port  V.  Com'th,  84  Pa.  St.  487,  Hammersmith  R.  Co.  v.  Brand.  L. 
where  it  is  said,  with  reference  to  R.  4  H.  L.  171  ;  Crackuell  v.  TheK 
a  municipal  corporation,  that  the  ford,  L.  R.  4  C.  P.  639  ;  Geddis  v. 
power  to  contract  a  debt  implies  Bann  Com.,  3  App.   4o5,  per  Lord 

•the     right    to    issue     the     proper  Blackburn.     [Whart.,  Negligence, 

acknowledgment,     i.     e.,     Ijonds,  §  869,    citing   to   same  effect  the 

therefor.  following  American  cases:  Sheldon 

31  Douglas  V.  Gausman,  68  111.  v.  R.  R.'Co.,  14  N.  Y.  318  ;  Hinds 
170.  See.  also,  Randall  v.  Randall,  v.  Barton,  35  Id.  544;  Road  v.  R. 
37  Mich.  563.  R.     Co.,    18    Barb.    (N.    Y.)    80; 

3-  Smith  V.  Look.  108  Mass.  139.  Phila.,  etc.,  R.    R.   Co.,  v.  Yeiser, 

"  Currier  V.  R.  R.  Co.,  11  Ohio  8  Pa.    St.    366;   Frankfort,    etc.. 

St.  328.  Turnp.  Co.  v.   R.  R.   Co.,  54  Id. 

34  Cleveland  v.  State  B'k,  16  345  ;  Bait.,  etc.,  R.  R.  Co.  v.  Wood- 
Ohio  St.  336.  ruff',  4  Md.  343  ;  Jefferis  v.   R.  R. 

(a)li.   V.   Pease,  4  B.  &  Ad.  30;  Co.,  3    Houston  (Del.)  447.     See. 

Vaughau  v.  Taff  "Valley  R.  Co.,  5  also.  Shearman  &  Redfield,  Negli- 

H.  &  N.  679  ;  29  L.  ,1.  347  ;  Free-  gence,  §333.] 
mamle  V.  London  &N.  W.  R.  Co..  {b)  Per  Williams,  J.,  in  White- 


598  IMPLICATIONS.  [§  423 

it  also  impliedly  requires  that  they  shall  be  exercised  only 
for  the  puiposes  for  which  they  were  given,  and  subject  to 
the  conditions  which  it  prescribes,  and  also  with  due  skill 
and  diligence,  and  in  a  way  to  prevent  a  needless  mischief  or 
injury  (a).  A  power,  for  instance,  to  establish  asylums  for 
the  sick  would  not  authorize  tlie  establishment  of  a  small-pox 
hospital  in  snch  a  place  or  circumstances  as  to  be  a  common 
nuisance  (b).  [So,  where  the  state's  right  of  eminent 
domain  is  committed  to  a  corporation,  and  by  vii-tue  of  the 
same  the  hitter  may  lawfully  enter  upon  the  land  of  an  indi- 
vidual and  build  all  structures  pro|)er  to  accomplish  the 
purpose  of  its  charter,  this  power  does  not  justify  unskill- 
fuhiess  or  unnecessary  injury  in  the  mode  of  jjerforming  the 
work,  or  in  the  character  of  the  structures  erected.'"]  And 
further,  as  a  grant  of  fish  in  a  j^ond  does  not  carry  with  it  an 
authority  to  dig  a  trench  to  let  the  water  out  to  take  the  iish, 
since  they  can  be  taken  by  nets  or  other  devices,  without  doing 
such  damage  (c)  ;  so,  a  statute  does  not  give  by  implication  any 
powers  not  absolutely  essential  to  the  privilege  or  property 
granted.  An  authority  to  construct  a  sewer  on  the  land  of 
another,  for  instance,  would  not  carry  with  it  the  right  to 
lateral  support  from  the  land,  if  it  was  possible  to  construct 
an  adequate  sewer  independent  of  such  support  {d).  If 
land  is  vested  by  Act  of  Parliament  in  persons  for  public 
purposes,  a  power  of  conveying  away  any  part  of  it  would 
not  be  impliedly  granted  (e).  [Similarly,  where  a  railroad 
company  has  the  right,  subject  to  liability  for  compensation, 

house  V.  Ftllowfs,  IOC.  B.  N.  S.  Compaio   Wlmiton,  Ne<r.,  ^5  872, 

780  ;   Sutton   v.    Clarke,  6  Taunt.  ct   seqq.  ;  Redficld,    Railroud,  pp. 

3t  ;  Stiiintou  V.  Woohych,  33  Beav.  157,    170,     171,     454;    also,    ante, 

225  ;  20  L.  J.  300.  §  251. 

(a)  Jones  v.  Bird,  5  B-  &  A.  837;  {(•)  Finch's  Disc,  on  Law,  63  ; 
Grocers'  (Jo.  v.  Donne,  3  Binir.  N.  Gearns  v.  Baker,  L.  K.  10  Ch. 
C.  34;  Clolhier  v.   Webster,  12  C.  355. 

B.  N.  S.  750  ;  31  L.  J.  316  ;   Law-  (d)  Mctrop.    Board    v.     Metrop. 

rencc  v.  G.   N.    R.  Co..  16  Q.   B.  Railway   Co.,  L.  R.  4  C.  P.  192. 

643;     Collier     v.     Middle     Level  See  Roderick  v.  Aston  Local  Board, 

Commis.,  L.  R.  4 C.  P.  27!) ;  Geddis  5  Ch.  D.  330. 

V.  Bann  Com.,  3  A  pp.  430.  (6)  Wadniore  v.  Dear,  L.  R.  7  C. 

(b)  MeMon.  Poor  Act,  1867,  s.  5;  P.  212  ;  Tipper  v.  IS'ichols,  18  C. 
Metrop.  Asylum  District  v.  Hill,  6  B.  N.  S.  121,  34  L.  J.  61  ;  Mulliner 
App.  193  ;  50  L.  J.  353.  v   Midiund  Ry.  Co.,  11  Ch.  D.  611, 

■■•■'  P.    F.    W.    &   C.    Ry.  Co.    V.      48  L.  J.  258. 
Gillcland,    56    Pa.     St.    445,    452. 


§  424]  IMPLICATIONS.  599 

to  take  land  to  a  certain  width,  for  the  construction  and 
operation  of  its  roadway,  "  after  the  right  has  been  exercised, 
the  use  of  the  property  must  be  lield  in  accordance  with  and 
for  tlie  purposes  which  justified  its  taking.  .  .  Hence  it 
is  that  no  one  can  pretend  that  a  railroad  company  may  build 
private  houses  and  mills,  or  erect  machinery,  not  necessarily 
connected  with  the  use  of  their  franchise,  within  the  limits 
of  their  right  of  way.  If  it  could,  stores,  taverns,  shops,  gro- 
ceries and  dwellings  might  be  made  to  line  the  sides  of  the 
road  outside  of  the  track — a  thing  not  to  be  thought  of  under 
the  terms  of  the  acquisition  of  the  right  of  way."^*] 

§  424.  Implied  Obligations.  —The  concession  of  privileges  or 
powers  carries  with  it,  often,  implied  obligations.  For 
instance,  an  Act  which  gives  a  power  to  dig  uj)  the  soil  of 
streets  for  a  particular  purpose,  such  as  making  a  drain, 
impliedly  casts  on  those  thus  empowered  the  duty  of  filling 
up  the  ground  again,  and  of  restoring  the  street  to  its  original 
condition  (a).  If  it  imposed  a  liability  on  one  person  to 
keep  in  repair  a  work  in  the  possession  of  another,  it  would 
be  understood  as  impliedly  imposing  on  the  latter  the  obli- 
gation of  giving  notice  of  the  needed  repair  to  the  party 
liable  {h).  A  public  body,  authorized  to  make  a  bridge  or 
towpath  and  to  take  tolls  for  its  use,  is  impliedly  bound  to 
keep  it  in  proper  repair,  as  long  as  it  takes  the  tolls,  and  in- 
vites the  public  to  use  the  work ;  or  at  least,  to  give  those 
whom  they  invite  to  use  it,  due  warning  of  the  defect  which 
makes  it  unfit  for  use  (c^).  [So,  a  city  being,  under  powers 
given  it  by  its  charter,  etc.,  in  possession  of  a  public  wharf 
and  exercising  exclusive  supervision  and  control  over  it,  and 

3"  Lance's   App..  55  Pa.   St.  16.  (a)  Gray  v.  Pullen,  5B.  &  S.  970. 

25      So  a  c;rant  of  a  right  of  way,  34  L.  J.  265. 

fifty  feet  wide,  bv  a  city  to  a  rail-  (//)  London    &  S.   E.   R.   Co.   v. 

road   over  a   snnill    strip  of   land.  Flower,  1  C.   P.   D.   77;  Makin  v. 

through  a  densely  populated  part  Watkinson,  L-  R.  6  Ex.  25.     See 

of  the   city,  conveys  only  so  much  Sealtock  v.   Harston,  1   C.   P.   D. 

ground  asis  necessary  for  the  line  106  ;  Brown  v.  G.  E.  R.  Co.,  2  Q. 

of  the  road,  and  will  not  carry,  by  B.  D.  406. 

implication,    the    right    lo    erect,  (c)  Winch  v.  Conservators  of  the 

within  such  line,  depots,  car-houses.  Thames,  L.  R.  7  C.  P.  458,  9  C.  P. 

or  other  structures  for  the  conveni-  378  ;  NichoU  v.   Allen,  1   B.   &  S. 

cnce    or    business    of    the     road  :  934,  31  L.  J.  283,  431  ;  Forbes  v. 

Allegheny  v.  R.  R.  Co.,  26  Pa.  St.  Lee  Cons.  Board,  4  Ex.  D.  216. 


600  IMPLICATIONS.  [§  424 

receiving  tolls  for  its  use,  is  boiiiid  to  keep  it  in  proper  con- 
dilion  for  use."  And,  of  course,  wlicro  :i  statute  uuthorizes 
a  person  to  build  a  road  and  collect  tolls  thereon,  requiring 
]iini  to  macadamize  it,  and  declaring  a  forfeiture  of  all  rights  ■ 
iicquired  under  it  upon  failure  to  comply  with  the  act,  he  can- 
not be  permitted  to  collect  tolls  when  he  has  macadamized 
■onl}'  part  of  the  road.°']  If  statutory  authority  is  given  to 
persons,  primarily  for  their  own  benefit  and  profit,  rather 
than  for  any  advantage  which  the  public  may  incidentally 
derive,  such  as  to  cut  through  a  highway  and  throw  a  bridge 
over  the  cutting,  or  to  substitute  a  new  road  for  the  old  one  ; 
the  burden  of  maintaining  the  new  work  in  repair  would 
impliedly  be  cast  on  them,  and  not  on  the  county  or  parish  {a.) 
Another  duty  which  would  also  be  impliedly  imposed 
on  them  by  such  an  enactment  would  be  that  of  protecting 
the  public  from  any  danger  attending  the  use  of  tlie  new 
work.  If  it  was  a  swing  bridge,  for  instance,  they  would 
be  bound  to  take  due  precautions  to  prevent  persons  from 
iittem])ting  to  cross  it,  while  it  was  open  (/>).  If  the  work 
was  a  railway,  crossing  a  highway  on  a  level,  they  would  be 
implicnlly  bound  to  keej)  the  crossing  in  a  proper  state  to 
admit  of  the  use  of  the  highway  by  carriages,  without 
damage  to  them  (c);  [and,  at  an  established  level  crossing, 
where  there  is  a  footpath,  to  place  lights  at  night.'"]  And 
this  implied  obligation  would  not  be  excluded  on  the  princi- 
ple expressum  facit  cessare  tacitum,  by  the  fact  that  certain 
duties  are  expressly  imposed  by  statute  on  railway  companies 
who  make  such  crossings;  ex.  gr.,  to  erect  and  maintain 
gates  where  the  public  road  crosses  the  railway,  and  to 
employ  men  to  open  and  shut  them,  and  to  keep  them  closed 
except  when  carriages  liave  to  cross  {(l).  So,  notwithstand- 
ing all  such  express  provisions,  the  company  would  be  bound, 
by    implication,  to    prevent  all    passage   along  the    i)ortion 

"  Pittsburgh  v.  Griev,  22  Pa.  St.  Co.,  29  L.  J.  M.  C.  151. 

54.  ('->)  Mtinlc'v  V.   St.  Helen's  Co.,  3 

38  State  V.  Cnrry,  1  Nev.  251.  11.  &  N.  840,  27  L.  J.  159. 

{n)  R.  V.  Kent,  13  East,  220  ;  \\.  (c)  Oliver  v.  N.  E.  K.  Co.,  L.  R. 

V.    Lindsay,   14  East.    317  ;  R.    v.  9  Q.  B   409. 

Kerrison,  3  M.  &  S.  52G  ;  R.  v.  Ely,  ^^  Whart.,     Neg.,    §   808a,    and 

15  Q.  B.  827  ;  North  Staffoidsliiro  cases  cited  in  notes  to  same. 

R.  Co.  V.  Dale,  8  E.   &   V,.   830  ;  (rf)  Id.  ;  G.  E.  R.   Co.  v.    Wan- 

r.pf.ch   V.    North  StatTord>lnre    R.  less,  L.  R.  7  II.  L.  12. 


|§  425,  426J  IMPLICATIONS.  601 

of  the  highway  thus  intersected,  when  it  was  dangerous  to 
cross  (a).  [And  even  where  a  company,  having  the  right  to 
cut  through  the  street  of  a  city,  was  not  bound  by  its  charter 
to  put  up  barriers  for  the  protection  of  travelers  upon  the 
street,  it  was  held  liable  for  the  neglect  of  its  employees  in 
not  putting  up  the  barriers  at  night,  which  the  company  had 
voluntarily  placed  there  for  safety.""  "  It  is  not  true  that 
all  the  defendant's  duties  and  liabilities  are  created  and  pre- 
scribed by  the  act  of  incorporation.  Corporations  as  well 
as  individuals,  by  the  principles  of  the  common  law,  are 
bound  so  to  exercise  their  rights  as  not  to  injure  others.  The 
principle,  sic  utere  tuo  ut  alienum  non  laedas,  is  of  universal 
application.""]  But  power  to  pull  down  the  wall  of  a  house 
without  causing  unnecessary  inconvenience  would  not  im- 
pliedly involve  the  obligation  of  putting  up  a  hoarding  for 
the  protection  of  the  rooms  exposed  by  the  demolition  (h). 

§  425.  One  Duty  may  Imply  Another  in  Same  Person. — Some- 
times the  express  imposition  of  one  duty  impliedly  imposes 
another.  Thus,  when  it  was  enacted  that  no  license  should 
be  refused  except  on  one  or  more  of  four  specified  grounds, 
the  obligation  was  imposed  by  implication  on  the  justices, 
of  stating  on  which  of  the  specified  grounds  they  based  their 
refusal  (c).  The  Ballot  Act  of  1872,  which  imposes,  in 
express  terms,  certain  specific  duties  on  the  presiding  ofiicers 
at  polling  stations,  casts  also  on  those  officers,  by  implication, 
the  duty  of  being  present  at  their  stations  during  an  election, 
and  of  providing  the  voters  with  voting  papers  bearing  the 
ofiicial  mark  required  by  the  Act  (d). 

§  426.  Right  or  Duty  in  One  may  Imply  Duty  in  Another. — A 
dut}"-  or  right  imposed  or  given  to   one,  may  also  cast  by 

(a)  Lunt  V.  London  &  N.  W.  R.  land,   ubi   supra,  wbere  the  com- 

Cc,  L.  R.  1  Q.  B.  277.  pany  was  held  liable  for  negligence 

^"Lowell  V.  B.  &  L.   Corp'n,  1  in  making  an  excavation  "near  to 

Am.  Railw.  Cas.  289,   cited  in  P.  another's  house,  which  caused  it  to 

F.  W.  &  C.  Ry.  Co.  V.  Gillelaud,  fall  upon  the  house  of  the  plaintiff 

56  Pa.  St.  445,  452.  and  injure  il.] 

"'  Ibid.  (c)  32  &  33  Vict.  c.  27,  s.  8;  R.  v. 

{b)  Thompson  v.    Hill,  L.    R.  5  Sykcs,    1    Q.    B.    D.    52 ;     Exp. 

C.  P.  564.      [Com p.  Davis  v.  Ry.  Smith,  3  Q.  B.  D.  374. 

Co.,  2  Engl.  Ry.  Cas.  225,  cited  in  {d)  Pickering  v.  James,   L.  R.  8 

P.,  F.   W.  &  C.   Rv.  Co.  V.  Gille-  C.  P.  489. 


G02  IMPLICATIONS.  [^§  427,  428 

implication  a  correspond ing  hiiitlj(iii  on  another,  as  in  the 
case  of  the  proviso  in  the  Commission  of  the  Peace,  requiring 
the  Quarter  Sessions  not  to  give  judgment  in  cases  of 
difficulty  unless  in  the  presence  of  one  of  the  Judges  of 
Assize  ;  which  impliedly  requires  the  judge  to  give  his 
opinion  {a).>  So,  the  Charitable  Trusts  Act,  1855,  which 
enacts  that  it  shall  not  be  lawful  for  the  trustees  of  a  charity 
to  make  au}^  grant  otherwise  tlian  (among  other  things)  with 
the  approval  of  the  Ciiarity  Commissioners,  was  considered 
as  requiring  the  Commissioners  to  give  their  ftp}>roval  in  a 
case  where  the  grant  was  made  before  the  Act  was  passed 
{h). 

§  427.  Grant  of  Right  to  One  may  Imply  Right  in  Another. — 
The  grant  of  a  privilege  or  of  property  to  one,  sometimes 
impliedly  gives  a  right  to  another  person.  Thus,  an  Act 
which  empowered  a  hospital  to  take  and  hold  lands  by  will, 
gift,  or  ]^urchase,  without  incurring  the  penalties  of  the 
Mortmain  Acts,  was  held  to  enj])ower  persons  to  devise  or 
convey  lands  to  it ;  it  being  considered  that  the  Act  would 
otherwise  be  nugatoiy  (c).  [An  act  empowering  a  city  tO' 
subscribe  its  bonds  for  a  certain  railroad  company's  stock,  by 
necessary  implication  confers  authority  upon  the  company 
to  receive  the  subscription."]  And  yet  an  Act  which  gave 
one  railway  conipany  power  to  purchase  certain  lands  and 
to  construct  a  railway,  according  to  the  deposited  plans  and 
books  of  reference,  would  not  give  by  imp.ication  to  another 
compnny  the  correlative  power  to  sell  any  of  those  lands  to. 
it  {d). 

§  428.  Implied  Conditions  in  Grrani  of  Judicial  Powers. — Again, 
in  giving  judicial  powers  to  affect  prejudicially  the  rights  of 
person  or  property,  a  statute  is  understood  as  silently 
implj'ing,  when  it  does  not  expressly  provide,  the  condition 
or  qualification  that  the  power  is  to  be  exercised  in  accordance 
with  the  fundamental  rules  of  judicial  procedure,  such,  for 

(a)  Per  cur.  in  R.  v.  Chanlrell.  Coinp.  Ncthersoll  v.  Indig.  Blind,. 
L.   R.  10  Q.  B.  587.  L.  R.  11  Eq.  1. 

(6)  Moou  V.  Church,  1  Ch.    D.  "*  Clarli  v.   Janesville,  10  Wis. 

447.  136. 

(c)  Periin?  v.   Trail,   18  Eq.  88,  {d)  R.  v.   S.  Wales  R.  Co.,  14  Q.. 

B.  902. 


§  428]  IMPLICATIONS.  GOo 

instance,  as  that  which  requires  that,  before  its  exercise,  the 
person  sought  to  be  prejudicial!}'  affected  shall  have  an 
opportunity  of  defending  himself  {a).  On  this  ground,  under 
the  -i  tfe  5  W.  4,  c.  76,  which  authorizes  justices  "  at  their 
just  and  proper  discretion"  to  order  out-door  relief  to  an 
aged  or  infirm  pauper  who  is  unable  to  work,  no  such  order 
could  be  made  without  summoning  those  on  whom  the  order 
was  to  be  made  (b).  So,  where  an  Act  authorized  justices, 
where  it  appeared  that  the  appointment  of  special  constables 
had  been  occasioned  by  the  behavior  of  persons  employed 
by  railway  or  other  companies,  in  executing  public  works, 
to  make  an  order  on  the  treasurer  of  the  company  to  pay  the 
special  constables  for  their  services,  which  order,  if  allowed 
by  a  Secretary  of  State,  should  be  binding  on  the  company  ; 
it  was  held  that  no  such  order  could  be  validly  made  without 
giving  the  company  notice,  and  an  opportunity  of  being 
heard  against  it  (c).  So,  where  a  Colonial  enactment 
authorized  the  Governor  to  declare  a  lease  forfeited,  if  it 
was  proved  to  the  satisfaction  of  a  Commissioner  that  the 
lessee  had  failed  to  reside  on  the  demised  land,  the  Com- 
missioner could  not  lawfully  be  satisfied  without  summoning 
the  lessee  and  holding  a  judicial  inquiry  {d).  The  Metro- 
politan Local  Management  Act,  which  requires  that  before 
the  foundations  of  a  building  are  laid,  a  seven  days'  notice 
shall  be  given  to  the  district  board,  and  authorizes  that  board 
to  demolish  any  building  erected  without  such  notice,  was 
construed  as  impliedly  imposing  on  the  board  the  condition 
of  giving  the  presumed  defaulter  a  hearing,  before  proceeding- 
to  the  demolition  of  his  building ;  and  a  district  board,  which 
had  confined  itself  to  the  letter  of  the  Act,  and  had  demol- 
ished a  building  respecting  which  it  had  received  no  notice, 
without  first  calling  on  the  owner  to  show  cause  against  its 
doing  so,  was  held  liable  in  an  action,  as  a  wrong  doer  {e).     A 

(o)  Bag?'s  Case,  11  Rep.  09  ;  R.  {b)  R  v.  Totnes  Uuiou,  7  Q.  B. 

V.  Univ.  of  Cambridge,  Stra.  557 ;  690. 

Emerson  V.  Newfoundland,  8  Moo.  (c)    1   «&  2  Vict.   c.   80;    li.    v. 

P.    C.    157  ;   Tliorbtiin  v.  Baines,  Chesliiie  Lines  Committee,  L.  R. 

L.  R.  2  C.  P.  a84  ;  Re  Pollard,  L.  8  Q.  B.  344. 

R.  2  P.  C.  106  ;  R.   v.  Jenkins,  8  ((/)  Smith  v.  R.,  3  App.  614. 

B.  &  S.  116,    32  L.  J.  M.   C.    1.  (e)  18  &  19  Vict.  c.  120;  Cooper 

[Comp.  ante,  §^  147,  202.J  v.  Waudswortii  Board,  14  C.  B.  N., 

S.  180,  32  L.  J.  185. 


604:  IMPLICATIO.NS.  [§  428 

statute  which  required  justices  to  issue  a  distress  warrant  to 
enforce  a  rate  or  other  charge,  even  thouiih  it  directed  them 
to  issue  it  "  on  proof  of  deniaud  and  non-payment,"  would 
nevertheless  be  construed  as  impliedly  requiring  that  ihey 
should  not  do  so,  without  first  summoning  the  party  against 
whom  it  was  demanded,  and  giving  him  a  hearing  against 
the  step  proposed  to  be  taken  against  him  {a).  A  power  to 
remove  a  person  from  his  office  or  employment  for  lawful 
cause  only,  would,  on  the  same  principle,  involve  the  con- 
dition that  it  was  to  be  exercisable  only  after  a  due  hearing, 
or  the  opportunity  of  being  heard,  had  been  given  to  the 
person  proposed  to  be  removed  {h).  But  it  would,  of  course, 
be  different  if  the  person  was  removable  arbitrarily,  and 
without  any  cause  being  assigned  {d).  It  is  obvious  that 
where  an  act  which  creates  a  new  jurisdiction,  gives  any 
person  dissatisfied  with  its  decision  an  appeal  to  another 
judicial  authority,  which  is  empowered  to  confirm  or  annul 
the  decision,  as  to  it  shall  appear  just  and  proper,  the  right 
of  being  heard  in  support  of  his  appeal  is  impliedly  given  to 
the  appellant  {d).  Under  the  provision  of  the  first  County 
Court  Act  (8  &  9  Vict.  c.  95),  which  empowered  the  Judge 
^to  summon  a  judgment  debtor,  and,  if  satisfied  that  he  had 
the  means  of  paying  his  debt,  to  order  him  to  pay  it  either 
in  one  sum  or  by  instalments,  and  if  he  failed  to  obey,  to 
commit  him  to  jail;  it  was  held  that  an  order  to  pay  by 
future  instalments,  and  in  default  of  p;»ying  any  of  them  to 

{n)  See  Harper  v.  Carr,  7  T.   R.  applied  to  taxation,  sec  Mc^Millen 

270  ;  R.  V.  Hui?hes,  3  A.  &  E.  425;  v.  Andcrsou,  95  U.  S.  37  ;  Pearson 

PaiHter  v.  Liverpool  Gas  Co.,  Id.  v.    Ycwdall,   Id.  294;   Stewart   v. 

433.       [It  would  Hueiu  that  a  simi-  Palmer,  74  N.  Y.  183;  Fox's  App., 

lar  implicaiion  would  have  to  be  112  Pa.  St.  337;   State  v.  Allen,  3 

made,  in  this  country,  in  the  case  McCord  (S.  C.)  55  ;  Cooley,  Tax'n, 

of  similar  statutes,  under  the  vari-  2G2. 

ous   conslilulioiial   provisions  for-  {b)   R.    v.    Smith,  5   Q.   B.    G14. 

bidding  the  taking  of  a  man's  prop-  [See  ante,  §  148.] 

erty  except  by  due  process  of  law,  (c)  Exp.  Teather,  1  L.  M.  &  P. 

wliich  implies  notice  and  hearing:  7;   R.   v.  Darlington  School.  6  Q. 

Craig   V.    Kline,  65   Pa.  Si.    399  ;  B.  G82  ;  Exp.  Sandys,  4  B.  &  Ad. 

Philadelphia   v.   Scott,  81  Id.  80  ;  803. 

Pennoyer  v.  Neff,  95  U.  S.  714  ;  ((/)  R.  v.  Archbishop  of  Canter- 
Davidson  V.  New  Orleans,  96  Id.  bury,  1  E.  &  E.  545,  28  L.  J.  154. 
97  ;  South  Platte  Land  Co.  v.  See  other  instances.  Re  Phillips' 
BulTalo,  7  N-'b.  253;  Zeiirlcr  v.  R.  Charily,  9  Jur.  959  ;  Re  Fremiug- 
R.  Co.,  58  Ala.  594;  Wriirht  v.  ton  School,  10  Jur.  512;  Davcu- 
Cradlebaugh,  3  Nev.  341  ;  Taylor  port  v.  R.,  L.  R.  3  App.  115. 
T.  Porter.  4  Hill  (N.  Y.)  140.     As 


§  429]  IMPLICATIONS.  ,  605- 

be  committed,  was  invalid  ;  for  it  made  the  debtor  liable  tO' 
imprisonment  for  not  making  a  payment  at  a  future  time, 
without  then  having  an  opportunity  of  defending  himself. 
As  the  language  of  the  Act  was  not  inconsistent  with  the 
general  principle  that  a  person  ought  not  to  be  punished 
without  having  had  an  opportunity  of  being  heard,  it  was 
construed  as  tacitly  embodying  it.  The  Judge  could  not 
properly  exercise  any  discretion  until  the  time  of  commit- 
ment (a). 

It  would  be  different  where  the  statute  gave  a  power  of 
immediate  commitment  in  default  of  immediate  payment  (h)^ 
And  again,  if  the  opportunity  of  defence  was  provided  at 
another  stage,  there  would  be  no  adequate  ground  for  thus 
implying  the  condition  in  question.  For  instance,  when  a 
statute  provided  that  if  a  rent-charge  was  in  arrear,  it  might 
be  levied  by  distress,  and  that  if  it  remained  in  arrear  for 
forty  days,  and  there  was  no  distress,  a  Judge,  upon  an 
affidavit  of  these  facts,  might  order  the  sheriff  to  sunnnon  a 
jury  to  assess  the  arrears  unpaid  ;  it  was  held  that  such  an 
order  might  well  be  made  ex  parte.  The  party  subject  to 
prejudice  liad  his  opportunity  of  defence  before  the  sheriff"  (c).. 
So,  where  an  Act  authorized  justices  to  inquire  and  adjudge 
the  settlement  of  a  pauper  lunatic,  and  to  make  an  order  on 
his  parish  to  pay  for  his  maintenance,  and  empowered  the 
parish  to  appeal  against  any  such  order  ;  it  was  held  that  tiie 
order  might  be  made  without  giving  the  parish  sought  to  be 
affected  notice  of  the  intended  inquiries  (d). 

§  429.  An  Act  which  empowers  two  or  more  justices,  or 
other  persons  (<?),  to  do  any  act  of  a  judicial,  as  distinguished 
from  a  ministerial  nature,  impliedly  requires  that  they  should 
all  be  personally  present  and  acting  together  in  its  per- 
formance, whether  to  hear  the  evidence,  or  to  view  when 

(a)  See  KinninQ;'s  Case,  10  Q.  B.  (t-)     Be      Hammersmilli      Reut 

730.    4  C.    B.  5U7  ;   Buchanan   v.  Charge,  4  Ex.   87,  7  D.  &  L.  41; 

Kinning,  8  C.  B.  271,  2  L.  M.  &  [Compare,  also,  Fox's   App.,    112 

P.  526  ;    Abley  v.  Dale,  10  C.  B.  Pa.  St.  337,  357.] 

62,  1  L.  M.  &  P.  626.      See,  also,  (d)  Exp.  IMonkleigh,  5  D.  &  L. 

Heskeih  v.  Athertou,  L.  R.  9  Q.  B.  404,  17  L.  J.  M.  C. 

4;  Lovering  V.  Dawson,  L.  R.  10  (c)   So,    directors  of  companies, 

C.  P.  711.  D'Arcy  V.  Tamar  R.  Co.,  L.  R.  2 

{b)  Arnott  v.  Dimsdale,  2  E,  &  Ex.  158  ;   Cook.  v.  VVai-d,  2.  C.P. 

B.  580,  22  L.  J.  M.  C.  101.  D.  255. 


GOG  IMI'I.ICATInXS.  [§  -ioO 

they  arc  to  act  on  jiufsoii  il  ii.spectioii  (a)  ;  to  consult 
toj^^etlier,  and  form  their  jiul^i^inent  {h).  [Tlie  same  rule 
applies  to  officers  intrusted  with  the  management  of  corpor- 
ations, whether  private  or  municipal.  When  they  propose 
to  do  any  deliberative  act,  their  powers  are  to  be  exercised 
oidy  when  duly  assendjled,  and  acting  as  a  body."  It  follows 
that  of  any  special  meeting  notice  must,  if  possible,  be 
given  to  every  member  of  the  l)oard  entitled  to  a  voice  in  its 
deliberations."  Nor  does  a  provision  in  the  charter  or  by- 
laws, that  a  majority  shall  form  a  board  for  the  transaction 
of  business  change  this  rule  ;*"  and  if  no  mode  of  warning  is 
prescribed  therein,  personal  notice  may  be  given."  But  the 
absence  of  one  member,  entitled  to  be  present,  but  not 
notified,  vitiates  the  proceeding."'  Such  acts,  therefore,  in 
order  to  be  valid,  and  to  bind  al)sent  niend)ers,  must  ])e  done 
at  a  regular  stated  meeting,  or  a  regular  adjourned  meeting, 
or  if  the  meeting  be  special,  notice  is  necessary,  and,  in  the 
absence  of  any  other  prescribed  kind  of  notice,  it  must  be 
personally  served,  if  practicable,  npon  every  member  entitled 
to  be  present."*]  When  the  act  to  be  performed  is  ministerial, 
it  is  not  necessary,  on  general  principles,  that  the  persons 
authorized  to  do  it  should  meet  together  for  the  purpose  ; 
and  the  statute  which  gave  such  authority  would  therefore 
not  be  construed  as  impliedly  requiring  it  (c). 

§  430.  New  Jurisdiction  how  to  be  Exercised.— When  a  new 
jurisdiction  is  given  to  an  existing  Court  to  deal  with  new 
matter  in  a  different  ujode  and  a  different  procedure,  it  is 

(a)  U.  V.  Cambridi^e,  4  A.  «fc  E.  Baib.  (N.  Y.)  27;   McCullough  v. 

111.                             "^  Moss,  5  Deuio  (N.  Y.)  567.     But 

(6)  Billings  v.  Prince,  2  "W.  Bl.  see  Bank  of  iMiddlebury  v.  R.  K. 

1017  ;  R.  V.   Hamstull  Rodwaie,  3  Co.,    30    Yt.     159  ;   Bnidstreet    v. 

T   R.  380  ;   R.  v.  Fonest,   Id.  38  ;  Bank,  42  Id.  128. 

R.  V.  Stotfokl,  4T.  R.  590;   R.  v.  ^'  Pike  Co.  v.  Rowland,  94  Pa. 

Winwick,    8   T.     R.    454  ;    R.    v.  St.  238,  247. 

Great  Marlow,  2  East,  244;  Bat tyc  ^Ub.,    cit.    Harding   v.    Yamle- 

V.  Gresley,  8  Id.  319  ;  Grindlay  v.  water,  40  Cal.  77. 

Barker    1   B.  &  P.   229  ;  Cook  v.  *^   Cit.   Stow  v.   Wysc,  7  Conn. 

Loveland,  2  Id.  31  ;  R.  v.  Mills,  2  214. 

B.  &   Ad.  587  ;  R.  v.   Totnes,  11  ■"  Cit.  Smyth  v.  Darley,  2  H.  L. 

Q.  B.    80  ;  R.  v.   Akiborough,  13  Cas.  789,  and  referring  to  People 

Q.  B.190.  V.  Balclielor,  22  N.  Y.  128. 

"»  See  cases  in  note  (e)  preceding  ■"*  Pike  Co.  v.  Rowland,  supra, 

page ;    Gasliwiller    v.    Willis,    38  (c)  Be  Hopper,  L.   R.   2  Q.  B. 

Cal.   11  ;   Conro  v.    Iron   Co.,    12  307. 


§    431]  IMPERATIVE — DIRECTORY.  OOT 

understood,  uidess  the  contrary  be  expressed  or  phiinly 
implied,  to  be  intended  to  be  exercised  according  to  the 
general  inherent  powers  of  the  Court  (a).  [And  wherever  a 
judge  is  allowed  or  directed  to  use  his  legal  discretion — and 
all  discretion  conferred  upon  courts  is  legal  discretion''^ — 
upon  a  certain  state  of  facts,  he  can  only  do  so  after  those 
facts  have  been  judicially  made  known  to  him,  i,  e.,  by  legal 
proof.""]  It  has  been  already  mentioned  that  when  a  power 
is  conferred  to  do  some  act  of  a  judicial  nature,  or  of  public 
concern  and  interest,  there  is  implied  an  obligation  to  exer- 
cise it,  when  tlie  occasion  for  it  arises  (J).  This  implied 
obligation  is  usually  said  to  modify  the  language  creating 
the  power,  when  permissive,  by  making  it  imperative  ;  but 
it  seems  to  be  a  matter  of  implied  enactment,  rather  than  of 
verbal  interpretation. 

§  431.  Distinction  between  Imperative  and  Directory  Provis- 
ions.— When  a  statute  requires  that  something  shall  be  done, 
or  done  in  a  particular  manner  or  form,  without  expressly 
declaring  what  shall  be  the  consequence  of  non-compliance, 
the  question  often  arises,  what  intention  is  to  be  attributed 
by  inference  to  the  Legislature.  Where,  indeed,  the  whole 
aim  and  object  of  the  Legislature  would  be  plainly  defeated 
if  the  command  to  do  the  thing  in  a  particular  manner  did 
not  imply  a  prohibition  to  do  it  in  any  other,  no  doubt  can 
be  entertained  as  to  the  intention.  The  enactment,  for 
instance,  of  the  Metropolitan  Building  Act  (c),  that  the  walls 
of  buildings  shall  be  constructed  of  brick,  stone,  or  other  in- 
combustible material,  though  containing  no  prohibitory 
words,  obviously  prohibits  by  implication  and  makes  illegal 
their  construction  with  any  other  {d).  [Where  an  act  in 
relation  to  certain  claims  against  the  state,  otherwise  not 
allowable,  required  them  to  be  presented  within  a  certain 
time,  thereby,  indeed,  making  a  distinction  between  these 
and  ordinary  claims,  as  to  the  time  of  presentment,  it  was 

(a)  Dale's  Case,  6  Q.  B.  D.  450.         annulled  and  rescinded  :  Ibid. 

49  See  ante,  §  147.  {b)  See  ante,  §i5  307-308,  813-314, 

50  Madden  v"  Fieldinc,  19  La.  An.      424,  428. 

505.*"  Hence  an  ex  parte  order  for         (c)  18  &  19  Vict.  c.  122,  s.  12. 
alimony  to  the  wife,  the  plaintiff         ((/)  tStevens  v.    Gourley,  7  C,  B. 
iu    a     divorce     proceeding,     was      N.  S.  99,  29  L.  J.  1. 
*  See  Addendi  to  ^  150. 


COS  l.MI'l.KAlIN  K DIIJKCJ'OKY.  [^  431' 

licld  tliiit  ])i'esiiiiij)ti\clv  that  liiuifat ion  was  intended  to  be 
material  and  eonsequently  that  it  must  be  followed."  Under 
an  act  directing  that  written  and  sealed  bids  shall  be  received 
until  a  certain  day,  upon  which  they  are  to  be  opened,  it 
was  held  that  all  bids  coining  in  after  that  day  must  be 
rejected."]  Again,  wliere  compliance  is  made,  in  terms,  a 
condition  precedent,  to  the  validity  or  legality  of  what  is 
done  ;  as  when,  for  example,  the  deed  of  a  married  woman 
was  to  take  effect  "  when  "  the  certificate  of  her  acknowledg- 
ment of  it  was  filed  {a);  or  wliere  it  was  provided  that  no 
appeal  should  be  entertained  "unless"  certain  i-ulcs  were 
comjillcd  with  {h)  ;  [or  where  the  doing  of  a  thing  was 
prohibited  "  until "  another  had  been  done ;"  or  where 
certain  certificates  M'ere  declared  transferable  "  oTily  "  in  a 
certain  prescribed  manner  f*]  the  neglect  of  the  statutory 
requisites  would  obviously  be  fatal. 

But  the  reports  are  full  of  cases  without  any  such  indica- 
tions of  intention  ;  in  some  of  which  the  conditions,  forms, 
or  other  attendant  circumstances  prescribed  by  the  statute- 
have  been  regarded  as  essential  to  the  act  or  thing  regulated 
by  it,  and  their  omission  has  been  lield  fatal  to  its  validity  ;, 
while  in  others,  such  prescriptions  have  been  considered  as 
merely  directory,  the  neglect  of  which  did  not  affect  its 
validity,  or  involve  any  other  consequence  than  a  liability  to 
a  penalty,  if  any  were  imposed,  for  breach  of  the  enactment." 

^'  Corbc'tt    V.    Bradley,    7   Nev.  of  its  provisions  opeiate  merely  as 

106.  advice  or  direction  to  the  ollicial  or 

^^  Webster  v.  French,  12  111.  302.  olherperson  who  is  to  do  something 

Comp.  Free  Press  Ass'nv.  Nichols,  pointed    out,    leaving    the  act    or 

45  Vt.  7,  post,  4^  4^6.  omission    not    destructive    of   (ho 

(a)  3  &  4  W.  4,  c.  74.  s.  85;  Jolly  legality  of  what  is  done  in  disregard 
V.  Hancock,  7  Ex.  820,22  L.  J.  of  the  direction:"  Bish.,  \Vr.  L., 
38-  ^255.    "  A  statute  is  called  niiinda- 

(b)  32  &  33  Vict.  c.  71  ;  lie  tory  when,  if  not  ail  its  provisions 
Dickinson,  51  L.  J.  Ch.  D.  736.  are    complied    with   according   to 

"  Slavton    V.     llulings,    7    Ind.  their  terms,  the  thing  done  is,  as  to 

144.       ■  it,    void  :"     Id.,     §    254.       These 

'"*  Union  B'k  v.  Laid,  2  Wheat.  dcscrii)tions   accurately    state    the 

390.  results  of  action  and  non-action  in 

"  The  distinction  between  these  conformity   with   or   disregard    of 

two  classes   of  statutes  orslatulory  the    provisions   of   statules    which 

provisions  is   ordinarily  expressed  are  either  directory  or  mandatoiy. 

by  denominating  the  latter  "direc-  But   to   answer    the    purposes    of 

lory,"   the    former    "  imperative,"  deliiutions,    it   would   seem   to  be 

or,  in  this  country,  more  usually,  more  logical,  as  well  as  precise,  to 

"  mandatorv."       "A     statute     is  say,   that    a    statute    or   statutoiy 

termed  director}' when  a  part  or  all  provision    is    directory    when   the 


§  432]  IMPERATIVE DIRECTORY.  609 

Tlie  propriety,  indeed,  of  ever  treating  the  provisions  of 
any  statute  in  the  latter  manner  has  been  sometimes  ques- 
tioned {a) ;  but,  [whilst  it  must  be  conceded,  that,  the  power 
to  declare  a  statute  to  have  merely  directory  force  verges  so- 
closcly  upon  legislative  discretion  as  to  be  exercisable  by 
courts  only  with  reluctance  and  in  extraordinary  cases,"  it  is- 
nevertJieless]  justifiable  in  principle  as  well  as  abundantlj 
established  by  numerous  authorities." 

8   4:32.   Tests.     Negative  and  Affirmative  Words [Jt   has  been 

intimated  that  afiirmative  words  relating  to  tlie  uumner  in 
which  power  or  jurisdiction  vested  in  a  public  officer  or 
body  is  to  be  exercised,  and  not  to  the  limits  of  the  power 
or  jurisdiction  itself,  may,  but  negative  words  going  to  the 
power  or  jurisdiction  itself  cannot,  be  directory  ;"  and  that, 
in  general,  negative  words  will  make  a  statute  impei'ative.'* 
Accordingly,  where  an  act  directed  that  no  debt  or  contract 
should  be  binding  upon  a  city  unless  it  be  authorized  by 
ordinance,  and  an  appropriation  sufficient  to  pay  it  be  previ- 
ously made  by  councils,  a  clerk  employed  by  one  of  the 
municipal  boards  at  a  salary  of  $2,000,  councils  having  ap- 
propriated only  $1,400  for  that  purpose,  could  recover  noth- 
ing beyond  the  latter  sum  from  the  city  f  and  under  an  act 
declaring  that  no  man  shall  be  permitted  to  vote  at  an  elec- 

Legislature  intended  that  strict  Sedgwick  on  luterp.  of  Stats.  375. 
coiujjliance  with  it  should  be  left  "^  Dryfus  v.  Bridges,  45  Miss. 
to  The  discretion  of  the  party  247, — and,  it  is  added,  never  where- 
empowered  to  act  under  it  and  the  the  act  or  omission  can  by  any 
convenience  and  necessities  of  the  possibility  work  advantage  or 
occasion  u-pon  which  it  was  to  be  injury,  however  slight,  to  any  one- 
applied,  and  did  not  intend  that  a  affected  by  it.  And  see  Best  v. 
failure  to  exercise  the  power  con-  Gholson,  89  111.  465. 
terred,  or  a  failure  of  exact  con-  ^''  If  a  statute  is  directory  as  to 
formity  with  all  the  piescribed  the  principal  affected  by  k,  it  is 
details  in  the  execution  of  it  should  equally  so  as  to  his  sureties  and 
render  the  same  void  ;  whilst  a  those  incidentally  affected  :  Looney 
mandatory  statute  or  provision  v.  Hughes.  30  Barb.  (N.  Y.)  C05. 
would  be  one  which  the  Legislature  '^  Per  Sharswood,  J.,  in  Bladen 
intended  to  be  strictly  complied  v.  Philadelphia.  60  Pa.  St.  464, 
with,  cnniemplatiug  an  exercise  of  406.  See,  also,  Dryfus  v.  Biidges, 
the  power  conferred  in  it  at  all  supra;  State  v.  Baker,  9  Rich.  Eq. 
events  and  exact  conformity  with  (S.  C.)  521;  State  v.  Harris,  17 
the  prescribed  details  in  the  execu-  Ohio  St.  608. 

tion    of    it    as  a  condition  of  the  ^^  i?e  McDouough's  Election.  105. 

legality  and  validity  of  the  same.  Pa.   St.  488,  494,    citing  State  v. 

(a)  Per  Martin.  B..  in  Bowman  v.  Uilniantel,  21  Wis.  566. 

Blyth,.7  E.  &  B.   47,  27  L.  J.  22  ;  ^'^  Bladen  v.  Philadelphia,  supra. 

39 


GIO  impekativp: — diukctory.  [ji  4o2 

tion  whose  iiiuiie  is  not  upon  tlio  registry  list,  unless  he  shall 
make  certain  ])r(»ofs,  re<jnired  hj  the  act,  of  his  right  to  vote, 
it  was  held  that  prcliniinarj  proof,  in  the  manner  required 
by  the  act,  of  his  (jualitications  was  essential  to  constitute  an 
unregistered  elector  a  legal  voter,  and  that,  such  proof  not 
having  been  made  before  the  vote  was  received,  it  could  not 
be  made  on  the  trial  of  a  contested  election  so  as  to  legalize 
the  vote."  And  similarly,  where  there  was  no  registry  of 
the  voters  of  a  town,  and  none  of  the  persons  who  voted 
there  at  an  election  fui'iiished  affidavits  reijuired  by  law  to 
entitle  the  vote  of  an  unregistered  elector  to  be  received, 
the  whole  vote  of  the  town  was  rejected/^  But  this  effect 
was  denied  to  a  similar  enactment  notwithstanding  its  express 
negative  terms,  on  the  ground  that  the  ])rohibition  of  the 
statute  was  directory."'  And  it  would  seem,  that,  as  a  rule 
of  universal  application,  the  principle  stated  cainiut  be  sus- 
tained." Thus,]  the  usual  jjrovision  in  the  commission  of 
the  peace  that  no  justice  luuned  in  it  shall  be  capable  of  act- 
ing or  authorized  to  act  unless  he  shall  have  taken  the  oaths 
required  b}'  law,  would  lead  to  intolerable  inconvenience  and 
injustice,  if  it  wt're  imperative  and  struck  with  invalidity 
every  act  of  an  unqualilied  justice.  If  his  acts  were  lield 
void,  it  w^as  pointed  out  by  the  King's  Bench,  all  persons 
who  acted  in  the  execution  of  a  warrant  issued  by  him, 
^vould  act  without  authority  ;  a  constable  who  arrested,  and 
a  gaoler  who  received  the  arrested  ])erson,  under  it,  would  be 
trespassers.  Resistance  to  them  would  be  lawful  ;  every- 
thing done  by  them  would  be  mdawful  ;  and  a  constable,  and 
the  persons  aiding  him  might  become  amenable  even  to  a 
chai'ge  of  murder,  for  acting  under  an  authority  which  tliey 
I'easonably  considei'cd  themselves  bound  to  obey,  and  of  the 
invalidity  of  whi(di  they  were  wholly  ignorant  (a).  Such 
consequences  could  not  leasonably  be  supposed  to  have  been 

"  Re     :\lcDon()iigli's      Elcclion,  4!J8  ;  Dale  v.  Irwin,  78  Id.  172. 

supra.  ''*  See  Potter's  D\vani.s,  p.   224, 

•i-  State  V.  Stumpf,  2^5  Wis.  0:30:  note. 

tljou!,^li  sueli  would  uol  he  tlieeilVct  («)  18  Geo.  2.  c.  20;  51  Geo.  3,  c. 

of  tlie  reception   of  votes  under  a  3(5  :  Miirgate  Pier  Co.   v.   llannam, 

defective  and   invalid  registry  list:  3   B.    iV    A.   266.      Corap.    K.    v. 

State  V.  Baker,  38  Id.  71.  Verelst.  3  C  amp.  432. 

"3  Clark    V.     liobinson.    88    111. 


§  432]  IMPERATIVE DIRECTORY.  Oil 

intended  ;  the  interest  of  the  public  required  that  the  acts 
should  be  sustained  ;  and  the  just  conclusion  was  that  the 
Le<ijislature  intended  by  the  prohibition  only  to  impose  a 
peisalty  for  its  infringement.  [Moreover,  it  is  to  be  observed, 
that  in  the  instances  above  cited,  in  which  the  principle  that 
negative  words  exclude  discretion  was  applied,  the  decision 
might  well  have  been  put  upon  one  or  more  of  the  grounds 
previously  stated^^  as  indicating  a  mandatory  intention.''' 
Thus,  concerning  the  construction  of  the  registiy  law  last 
referred  to,  as  directory  only,  it  is  said  by  one  court,  disap- 
proving that  construction  :  "  Unless  there  is  some  provision 
in  the  statute  authorizing  election  officers  to  receive  a  vote 
on  their  own  knowledge  of  the  qualifications  of  the  person 
M'ho  offers  it,  such  judicial  construction  nullifies  the  law 
made  to  prevent  fraudulent  voting.'"'  Similarly,  a  provision 
in  an  act  relating  to  boroughs,  that  all  ordinances  "  shall  be 
recorded  in  a  book  .  .  which  shall  be  free  to  public  inspec- 
tion, and  no  ordinance  .  .  shall  be  carried  into  operation  in 
less  than  two  weeks  after  the  same  shall  be  so  recorded," 
was  held  to  be  clearly  mandatory  as  expressing  a  condition 
upon  which  any  ordinance  was  to  go  into  effect,  and  before 
the  performance  of  which  no  ingenuity  could  make  any 
ordinance  operative."'  It  is  undoubtedly  true,  however, 
that  an  intention  to  make  a  provision  merely  directory  is 
moi-e  rarely  to  be  found  under  such  negative  words.'"  As 
an  illustration  may  be  cited  the  decision  under  a  statute  that 
provided  (1)  that  all  resolutions  and  reports  of  committees 
of  a  certain  description  should  be  published  in  all  the  news- 
papers employed  by  the  municipality  to  which  the  act 
related;  and  (2)  that  such  resolutions  and  reports  "shall  not 
be  passed  or  adopted  until  after  such  notice  has  been  pub- 
lished at  least  two  days."  It  was  held  that  the  former  pro- 
vision, i.  e.,  that  the  publication  must  be  in  all  the  news- 
papers, was  to  be  regarded  as  directory  only,  and  its  omis- 
sion or  neglect  would  not  vitiate  the  ordinance,  but  that  the 

85  See  ante,  §  431.  «8  Verona's  App.,  108  Pa.  St.  83, 

««  See,  also,  post,  §  434.  89. 

«'  Re     McDonougti's     ElecMon,  s^  ggg  Bish.,  Wr.  L.,  ^  255a. 

supra,  at  p.  495. 


C12 


mrKRATIVE — DIRECTORY. 


[§433: 


scconcl  provision,  tluit  it  must   be  publislied   in  some  news- 
paper at  least  two  clays,  was  imperative.'"] 

§  433.  Duty— Privilege.— It  has,  indeed,  been  said  that  no 
ride  ean  be  hiid  down  t'oi-  determining  wliether  the  com- 
mand is  to  be  considered  as  a  mere  direction  or  instruction 
involving  no  invalidating  consequence  in  its  disregard,  or 
as  imperative,  with  an  implied  nullification  for  disobedience, 
beyond  the  fundamental  one  that  it  depends  on  the  scope 
and  object  of  the  enactment  (a).  It  may,  perhaps,  be 
found  generally  coi-reot  to  say  that  nullilication  is  the 
natural  and  usual  consequence  of  disobedience,  [and  that 
where  an  act  requires  a  thing  to  be  done  in  a  particular 
manner,  that  manner  alone  must  be  adopted."]  But  the 
(juestion  is  in  the  main  governed  by  considerations  of  con- 
venience and  justice  {b),  and  when  nullilication  would  involve 
general  inconvenience  [or  great  })ublic  mischief,"]  or  injustice 
to  innocent  persons,  or  advantage  to  those  guilty  of  the 
n(>glect,  without  promoting  the  real  aim  and  object  of  the 
enactment,  such  an  intention  is  not  to  be  attributed  to  the 
Legislature.      In   the  fiist  place,  a  strong  line  of  distinction 


'"  Mailer  of  Douglas  58  Barb. 
(N.  y.)  174,  the  phrase  "at  least 
two  days"  be'ng  construed  as 
nicaniiig,  not  that  there  must  be 
two  j)u  1)1  icat ions  on  two  sepaiate 
(lays,  but  that  two  liays  m^'^' 
elapse  between  the  introducliwii 
and  publication  of  the  ordinance, 
and  its  tina!  passage  :  Ibid. 

(a)  Per  Lord  Campbell  in  Liver- 
pool Borough  BanJc  v.  Turner,  2 
DeG.,  F.  ct  .T.  502,  SOL.  J.  379; 
p(^r  Lord  Penzance  in  Howard  v. 
Boddin;:ton.  2  P.  D.  211.  [Bish.. 
Wr.  L.'",  ti  255.  In  Kellogg  v. 
Page.  44  Vt.  356,  it  is  intimntod 
that  this,  like  other  question-  ...is.- 
ing  in  the  construction  of  statutes, 
IS  one  of  intention  on  the  part  of 
the  Legislature.  And  see  Corbelt 
V.  Bradley,  7  Nev.  IOC] 

'•^  Conuu'rs  v.  Gaines,  3  Brev. 
(S.  C.)  39G.  See,  also,  Best  v. 
Gholson,  R9  III.  465.  In  Pennsyl- 
vania, it  is  i)rovid(d  bv  statute,  21 
March  1806.  §13,  that,  "in  all 
cases  where  a  remedy  is  provided, 
or    duty     enjoined,    or    anything 


directed  to  be  done  by  anj^  act  or 
acts  of  assembly  .  .  the  directions 
of  the  said  acts  shall  be  strictly 
pursued."  See  as  to  the  applica- 
tion of  this  act:  McMichael  v.  Skil- 
ton,  13  Pa.  St.  215,  217  O^rtition)  ;. 
Com'th  V.  Garrigues,  28  Id.  9.  12 
(elections:  see,  with  this  case. 
State  V.  Marlow,  15  Ohio  St.  114^ 
where,  as  in  Com'th  v.  Garrignes, 
it  was  held  that  tlie  slat  utoi-y  mode 
of  contesting  elections  was  exclu- 
sive of  common  law  iiroceeding  by 
mandamus,  and  was  binding  ui)on 
the  stale,  the  goveining  statute,  in 
that  case,  being  according  to  the 
requirement  of  the  constitution)  ;. 
Beilzhoover  v.  GoUings,  101 
Id.  293.  295;  White  v.  Mc- 
Keesport.  Id.  394.  401  (remedies 
against  municipalities)  ;  Campbell' 
V.  Grooms,  Id.  481,  483  (against 
poor  di.«lrict). 

(b)  Sec  pe7'  Lush.  J.,  in  R.  v. 
Ingall.  2  Q.  B.  D.  208. 

'''^  Dryfus  v.  Bridges,  45  Miss. 
247. 


f  434]  IMPKKATIVE — DIRECTORY.  613 

may  be  drawn  between  cases  where  the  prescriptions  of  the 
Act  affect  the  performance  of  a  duty,  and  where  they  relate 
to  a  privilege  or  power  (a).  Where  powers  or  rights  are 
granted,  with  a  direction  that  certain  regulations  or  formal- 
ities shall  be  complied  with,  it  seems  neither  unjnst  nor 
inconvenient  to  exact  a  rigorous  observance  of  them  as  essen- 
tial to  the  acquisition  of  the  right  or  authority  conferred  ; 
and  it  is  therefore  probable  that  such  was  the  intention  of 
the  Legislature.  But  when  a  pnblic  duty  is  imposed,  and 
the  statute  requires  that  it  shall  be  performed  in  a  certain 
manner,  or  within  a  certain  time,  or  under  other  specified 
conditions,  such  prescriptions  may  well  be  regarded  as 
intended  to  be  directory  only,  when  injustice  or  inconven- 
ience toothers  who  have  no  control  over  those  exercising  the 
duty,  would  result,  if  such  requirements  were  essential  and 
imperative. 

§  434.  Regulations,  etc.,  of  Acts  conferring  Powers,  Privileges, 
etc.,  Imperative.— Taking  the  former  class  of  cases,  it  seems 
that  when  a  statute  confers  a  right,  privilege,  or  immunity, 
the  regulations,  forms,  or  conditions  which  it  prescribes  for 
its  acquisition  are  imperative,  in  the  sense  that  non-obser- 
vance of  an}'  of  them  is  fatal,  [upon  the  principle,  applica- 
ble alike  to  contracts  and  statutes,  that  a  party  cannot  claim 
the  benefits  conferred,  and  at  the  same  time  repudiate  the 
■obligations  imposed  by  such."]  Thus,  where  an  Act  gave 
to  the  designers  of  prints  the  sole  right  of  printing  them 
for  fourteen  years  after  the  day  of  publication,  adding, 
^'  which  (day)  shall  be  truly  engraved,  with  the  name  of  the 
proprietor,  on  each  plate  ; "  it  was  held  that  the  neglect  to 
comply  with  this  provision  was  fatal  to  the  copyright  {b). 
So,  under  the  enactment  that  no  proprietor  of  a  copyright 
should  be  entitled  to  sue  for  its  infringement,  unless  he  had 
made  an  entry  at  Stationers'  Hall  of  the  title  and  time  of 
the  first  publication  of  the  book,  and  the  name  and  abode 
of  the  publisher,  it  was  h.eld  that  a  suit  was  not  maintain- 
able, where   the  day  of  publication  was  not  stated    truly,  or 

(cr)  Seej)<??'Deninan,  J.,inCaldow  (6)  8  Geo.  2,  c.  13;  Newton  v. 
V.  Pixell,  2  C.  P.  D.  506.  .  Cowie.   4  Bing.   234  ;    Brooks    v. 

"Burrows  v.  Bashford,  22  Wis.  Cock,  3  A.  &  E.  141  ;  Avanzo  v. 
•103.  Mudie,  10  Ex.  203. 


ou 


IMPEKATIVK — DIRECTORY , 


[§434 


only  the  month  was  stated;  or  the  puhlisliers  were  not 
described  correctly,  tliat  is,  neither  by  the  style  of  the  firm, 
nor  l)y  the  names  of  the  individual  partners  {a).  [So,  an 
omission  to  comply  with  any  one  of  the  requirements  of  a 
copyrii^ht  law, — depositing  of  the  title,  publishing  the  fact 
of  entry,  delivery  of  a  copy  of  the  published  work,  etc., — 
was  held  to  be  fatal  to  the  copyright/']  The  innkeeper 
whose  cominon  law  liability  for  the  goods  of  his  guests  is 
limited,  if  he  jwsts  up  a  notice  as  required  by  the  2G  &  27 
Vict.  c.  41,  does  not  obtain  the  exoneration,  if  his  notice  is 
inaccurate  in  any  material  particular  (/;).  The  Act  which, 
in  authorizing  the  confinement  of  lunatics,  prohibited  their 
reception  in  asylums  without  medical  certificates  in  a  given 
form,  setting  forth  several  particulars,  and  among  them,  the 
street  and  number  of  the  house  where  the  supposed  lunatic 
was  examined,  made  a  strict  compliance  with  those  provi- 
sions imperative  ;  so  that  a  certificate  which  omitted  the 
■  street  and  number  of  the  house  where  the  examination  took 
place,  was  held  insutticient  to  justify  the  detention  of  tiie 
lunatic  (c).  When  a  company  or  public  body  is  incorporated 
or  establislied  by  statute  for  special  purposes  only,  and  is 
altogether  the  creature  of  statute  law,  the  forms  prescribed 
for  its  acts  and  contracts  are  imperative  and  essential  to  their 
validity  {(I).      [To  this  class   of    statutes   belong   also   those 


(a)  5  &  6  Vict.  c.  45  ;  Low  v. 
Koiitlcdge.  33  L.  J.  Ch.  725  ; 
Miithicson  V.  llairod,  L.  R.  7  Eq. 
270;  lIciidtTson  v.  I\laxwell,  5  Cli. 
I).  H92,  46  L.  J.  891. 

•■«  Sec  Wliciiton  v.  Peters,  8  Pet. 
591  ;  Kwer  v.  (.'o.xe,  4  Wash.  487  : 
•lollic  V.  .lacciucs,  1  Blatchf.  018  ; 
liaker  v.  Taylor,  2  Id.  82. 

(b)  Spicer  v.  Bacon,  2  Ex.  D. 
403.  See  Gregson  v.  Potter,  4  Ex. 
I).  112  ;  Mather  v.  Brown,  1  C.  P. 
1).  59<i. 

(r)  10  it  17  Vict.  c.  1)6  ;  R.  v. 
Pindcr,  24  L.  J.  Q.  B.  148.  Conip. 
J!e  ShuUieworth,  9  Q.  B.  651. 
AVhcrc  it  was  enacted  that  a  per- 
son who  objected  to  a  voter's 
qiialifieatioii  might  be  heard  in 
support  of  his  objection,  if  he  iiad 
given  notice  to  tlie  voter;  and  it 
was  provided  that,  besides  the 
ordinary   way   of   .serving    it,    the 


notice  miglit  be  sent  by  post  to  his 
place  of  abode  "  as  described  "  in 
the  list  of  voters  prepared  by  the 
clerk  of  the  peace;  it  was  held  that 
to  send  by  post  a  notice,  not  to 
the  address  so  given,  wiiich  was 
incorrect,  bvit  to  the  true  address, 
was  not  a  com])liance  with  the 
Act.  and  therefore  that  the  object- 
or covdd  not  be  heard  on  mere 
proof  of  posting  the  notice  :  No.se- 
worthy  v.  BuclVland,  L.  R.  9  C.  P. 
233.  See  Smitli  v.  Huguelt,  11 
(;.  B.  N.  S.  55,  31  L.  J.  41.  [Nor, 
under  an  act  granting  the  right  to 
contest  elections  to  "electors," 
can  a  petition  describing  the 
petitioner  as  a  "  citizen  and  resi- 
dent," be  su.slained  on  demurrer  : 
Blanck  V.  Pauscli,  113  111.  60.] 

{(I)  Co])e  V.  Thames  Haven,  et<;., 
Co.,  3  Ex.  841  ;  Diggle  v  London 
&  Blackwall  R.  Co.,  5  Ex.  442; 


§  434] 


IMPERATIVE — DIRECTORY. 


615 


which  authorize,  and  prescribe  the  inaniier  and  form  of  con- 
veyances, by  niarricfJ  women  of  their  real  estate, —  as,  by  join- 
der of  the  husband,  separate  acknowledgment,  and  the  like. 
The  decisions  of  the  courts  are  uniform  that  any  substantial 
deviation  from,  o)'  omission  of,  the  ret[nired  formalities,  ren- 
ders the  instrument  utterly  void,  not  only  as  a  conveyance,  but 
also  as  an  agreement  to  convey,  thus  giving  the  grantee  named 
neither  a  legal  nor  an  equitable  title  to  the  property,"  and 
leaving  the  contract  incapable  of  ratification  without  a  new 
consideration,'"  and  then  only  ratifiable  by  way  of  a  new 
instrument  properly  executed  in  accordance  with  the  statu- 
tory requirements."  And  in  general  it  may  be  said,  that, 
where  a  statute  at  the  same  time  gives  a  new  power  and 
prescribes  the  means  and  n^ethod  of  executing  it,  it  can  be 
lawfully  executed  in  no  other  way."  Thus,  a  power  given 
to  a  municipal  corporation  to  establish  fire  limits  and  pro- 
hibit the  erection  of  wooden  buildings  within  the  same, 
upon  petition  of  owners  of  real  estate,  cannot  be  exercised 
except  upon  such  antecedent  petition  ; "  and  so  of  a  power  to 
grade  on  application  of   a  majority  of  lot-holders  on   the 


Frend  v.  Deiinet,  4  0.  B.  N.  S. 
576.  See,  also,  Cornwall  Mining 
Co.  V.  Bennett,  5  H.  &  N.  4:32 ; 
Irish  Peat  Co.  v.  Phillips.  1  B.  & 
S.  598,  80  L.  J.  583.  [See,  also, 
Second  Maniialtan  B.  A.  v.  Hayes, 
4  Abb.  App.  Dec.  (N.  Y.)  183  : 
Beckct  V.  Biiild'g  Assn,  88  Pa.  St. 
211  ;  Workiiigmeii's  B.  A.  v.  Cole- 
man, 80  Id.  428;  Gordon  v.  Bnild'g 
Ass'n,  12  Bush  (Ky.)  110;  Martin 
V.  Build'g  Ass'n,  2  Cold.  (Tenn.) 
418.] 

"  See  Leggate  v.  Clark,  111 
Mass.  308  ;  Armstrong  v.  Boss,  20 
N.  J.  Eq.  109  ;  Watson  v.  Bailey, 
1  Binn.  (Pa.;  470  ;  Trimmer  v. 
Heagy,  16  Pa.  St.  484  ;  Stoops  v. 
Blackford,  27  Id.  213  ;  Glidden  v. 
Strupler,  52  Id.  400  ;  Dunham  v. 
Wright,  53  Id.  107;  (4raham  v. 
Long,  65  Id.  288;  Miller  v.  Went- 
worth,  82  Id.  280  ;  Innis  v.  Tem- 
pleton,  95  Id.  262  ;  Miller  v.  Ruble, 
107  Id.  395  ;  Montoursville  Over- 
seers V.  Fairfield  Overseers,  112 
Id.  99  ;  Bartlett  v.  Donoghue,  72 
Mo.  563  ;  Iloskinson  v.  Adkins,  77 
Id.  587  ;  Bagby  v.  Emerson,  79  Id. 


139  ;  Shumaker  v.  Johnson,  35  Ind. 
83  ;  Mattox  v.  Higlitshue,  39  Id. 
95  ;  Beckmau  v.  Stanley,  8  Neb. 
257;  CoUura  v.  Pitligrew,  10 
Ileisk.  (Tenn.)  394.  See,  however, 
as  to  what  is  suiHcient  joinder  of 
husband  :  Thompson  v.  Lovrein, 
82  Pa.  St.  432  ;  Pease  v.  Bridge, 
49  Conn.  58  ;  Mount  v.  Kesterson, 
6  Cold.  (Tenn.)  482  ;  Evans  v. 
Summerlein,  19  Fla.  858. 

'"  See  Brown  v.  Bennett,  75  Pa. 
St.  420  ;  Kent  v.  Rand.  (N.  H.)  22 
Rep.  621. 

^^  See  Buchanan  v.  Hazzard,  95 
Pa.  St.  240;  Glidden  v.  Strupler,  52 
Id.  400. 

"  See  Head  V.  Ins.  Co.,  2  Cranch, 
127;  Franklin  Glass  Co.  v.  White, 
14  Mass.  286  ;  Best  v.  Gholson,  89 
111.  465  ;  Journeay  v.  Stale,  1  Mo. 
428  ;  Sturgeon  v.  State,  1  Blackf. 
(Ind.)  89  ;  State  v.  Cole,  2  McCord 
(S.  C.)  117  ;  Bish..  Wr.  L..  §  256  ; 
and  sec  Cook  v.  Kelly,  12  Abb.  Pr. 
(N.  Y.)  35,  and  ante,'^  433. 

"  Des  Moines  v.  Gilchrist.  C.7 
Iowa,  210. 


016 


IMPERATIVK DIUECTORY. 


[§435 


street.'"  Nor  c:im  ;i  right  to  recover  damages  from  a  munici- 
pality for  injuries  caused  to  property  by  a  cliango  of  grade 
from  the  original  location  of  a  street  therein, — a  right  rest- 
ing solely  upon  the  statute  whicii  gives  it, — he  enforced  in 
any  way  except  that  pointed  out  by  the  statute." 

§  435.  Acts  Relating  to  Judicial  Procedure.— [Wiierc  author- 
ity to  procee«l  in  courts  of  justice  is  conferred  by  statute, 
and  where  the  manner  of  obtaining  jurisdiction  is  prescribed 
by  statute,  the  mode  of  proceeding  is  mandatory  and  must 
be  strictly  complied  with,  or  the  proceeding  will  be  utterly 
void;"  and]  enactments  regulating  the  procedure  in  courts 
seeiri  usually  to  be  imperative  and  not  merely  directory  (a). 
If,  for  instance,  an  appeal  from  a  decision  be  given,  with 
provisions  requiring  the  fulfillment  of  certain  conditions, 
such  as  giving  notice  of  appeal  and  entering  into  recogniz- 
ances, or  transmitting  documents  within  a  certain  time,  a 
strict  compliance  would  be  imperative,  and  non-compliance 
would  be  fatal  to  the  appeal  (5),  [even  where  one  of  the 
defendants  was  confined  in  prison  during  the  period  allowed 
for    perfecting  the   same."     So,  a    provision  recpiiring  the 

80  Pittsburg  V.  Walter,  69  Pa. 
St.  365.  And  see  S.  P.  Pcnsacola 
V.  Wittich,  21  Fla.  4i)2. 

»'  Beltzhoovcr  v.  Gollings,  101 
Pa.  St.  293  :  even  independeutly 
of  the  net  of  1806  (see  ante,  §  433 
note):  Ibid. 

»•-'  Norwegian  Str..  81  Pa.  St. 
349,  354  ;  Seymour  v.  Judd,  2  N. 
Y.  464. 

(a)  See,  however,  post,  §  436, 
note,  and  §  445. 

(b)  R.  V.  0.\fordsbire,  1  M.  &  S. 
446  ;  li.  V.  Carnarvon,  4  B.  &  A. 
86  ;  R.  V.  Bond,  6  A.  &  E.  905j  R. 
V.  Lancasbuc,  8  E.  &  B.  503  ; 
Morgan  v.  Edwards,  5  IT.  &  N. 
415  ■  Woodhonse  v.  Woods,  29  I-. 
J.  M.  C.  139:  Fo.x  v.  Wallis,  2  C. 
P.  D.  45.  [See  Slall'ord  v.  Bank. 
16  How.  135  ;  17  Id.  275  ;  Stalford 
v.  Canal  and  B'k'g  Co..  Id.  283; 
Kirk  V.  Armstrong,  Hemps.  283  ; 
Wilson  v.  Palmer,  75  N.  Y.  250 ; 
Lane  v.  Wlieeler,  101  Id.  17  ;  111. 
W.  R.  R.  Co.  V.  Gay.  5  III.  xipp., 
393  ;  Stale  v.  Jones,  11  Iowa,  1 1  ; 
Pratt  V.  Stage  Co.,  26  Id.  241  ; 
King    V.    McCami.    35   Ala.    471  ; 


Mays  V.  King,  28  Id.  690  ;  Coff- 
man  v.  Davanev.  2  Miss.  854  ; 
Dawson's  App.,' 15  Pa.  St.  480; 
Cherry  Overseers  v.  Marion  Over- 
seers, 9()  Id.  528  ;  Road  in  Salem 
Tp.,  103  Id.  250;  Providence  Co.  v. 
Chase,  108  Id.  319  ;  Wliipley  v. 
Mills,  9  Cal.  641  ;  Ilildreth  v. 
Gwindon,  10  Id.  490  ;  Elliott  v. 
Chapman,  15  Id.  383  ;  Gordon  v. 
Wansey,  19  Id.  82  ;  Dooliug  v. 
Moore,  20  Id.  14;  Mayer  v. 
Prud'homme,  1  La.  An.  230  ;  Sears 
V.  Willson,  4  Id.  525 ;  Wood  v. 
Wall,  5  Id.  179  ;  Knight  v.  Bean, 
18  Me.  217  ;  ^Maxwell  v.  We.'^sels, 
7  Wis.  103;  Brown  v.  Ry.  Co.,  83 
:Mo.  478  ;  Harris  v.  Gest,  4  Ohio 
St.  469  ;  3l(Lani;hlin  v.  State,  6() 
Ind.  193  ;  Flory'v.  Wilson,  83  U. 
391  ;  Clinton  v.  Philli!)s.  7  T.  B. 
Man.  (.Kv.)  117  ;  Campbell  v. 
xillison,  63  N.  C.  568 ;  .loll'ery  v. 
?*rarshall,  1  Ark.  47  ;  Bay  ley  v. 
Ilazartl,  3  Yerg.  (Tenn.)  487  ; 
Lyall  V.  Guadaloiipe  Co.,  2S  Tex. 
57  ;  Zeckeudorf  v.  Zeckendorf,  1 
Ariz.  401. 1 

»- Stone    V.    Eismau,   1  T^aw  '!.. 


§  435]  IMPERATIVK nrRECTORY.  0 1  7 

party  issuing  an  af.tuclnnent,  to  o'ivo  bond  with  a  penalty, 
-c^ondition  and  sureties,  was  held  imperative,  and  its  observance 
indispensable  in  order  to  the  vahdity  of  the  process."'']  The 
same  imperative  effect  seems,  in  general,  presumed  to  be 
intended,  even  where  the  observance  of  tlie  formalities  is  not 
a  condition  exacted  of  the  party  seeking  the  benefit  given 
by  the  Statute,  but  a  duty  imposed  on  a  Court  or  public 
officer  in  the  exercise  of  the  power  conferred  on  him  ;  when 
no  general  inconvenience  or  injustice  calls  for  a  different 
construction.  The  5  Eliz.  c.  5  requiring  that  the  writ  de 
■contumace  capiendo  shall  be  brought  into  the  Queen's  Bench, 
and  be  there  opened  in  the  presence  of  the  judges,  the  omis- 
sion of  this  apparently  idle  ceremony  was  deemed  fatal  to  the 
validity  of  an  arrest  made  in  pursuance  of  the  writ,  though 
it  had  been  enrolled  in  the  Crown  Office  {a).  An  enactment 
which  provided  that  every  warrant  issued  by  a  Court  should 
be  under  its  seal,  was  equally  imperative,  and  not  only  was 
a  commitment  under  an  unsealed  warrant  invalid,  but  the 
person  who  had  obtained  it  without  taking  care  that  the 
Court  performed  its  duty  of  sealing  it,  was  liable  in  damage 
to  the  person  arrested  under  it  (Ji).  This  was  hard  on  the 
former,  but  it  was  essential  for  the  latter  that  the  warrant 
should  be  duly  authenticated.  [Equally  imperative  are 
provisions  requiring  the  person  serving  a  summons  to 
endorse  thereon  the  date  of  service ;"  provisions  relating  to 
the  time  of  levy,"  or  requiring  sheriff's  sales  to  be  held  at 
the  court  house."]     If  commissioners,  authorized  to  fix  the 

N.  S.  (Pa.)    123.     But  where    the         «'  Dryfus    v.  Bridges,  45  Miss, 

last  day   allowed  is  dies   non,  the  247.      But  statutes  relating  to  the 

next  day  is  in  time:  Rose's  Est.,  63  time   and  manner   of   summoning 

€al.  34G.     And  see  ante,  §  393.  and  bringing  in  jurors  are  said  to 

^■i  Blake   v.    Sherman.   13  Minn.  be  largely   directory  :  Johnson  v. 

420.     As  to  such  powers  and  pro-  State,    33    Miss.    303  ;      State    v. 

ccdure  and  the  strict  construction  Smitii,  (57  Me.  328 ;  State  v.  Pitts, 

and  pursuance  of  acts  giving  them,  58  Mo.  556  ;  State  v.   Carney,  20 

ante.  §  351.  Iowa,    82;   State  v.  Gillick,  7  Id. 

{a)  'Re  Dale,  7  App.  240,  50  L.  287;  Bish.,   Wr.   L.,  §   255  ;    and 

-J.  Q.  B.  234.  see  Colt  v.  Ives,  12  Conn.  243  ;  and 

ip)  Exp.  Van  Sandau,  DeG.  303.  so  statutes  providing  for  other  steps 

So,  a  rate  under  the   Pub.  Health  in  a  judicial  cause  :  Blsh.,  Wr.  L., 

Act,  1848  :  R.  v.  Workshop  Board,  iibi  supra  ;  where  the   provisions, 

5  B.  «fc  S.  95.  though  in  the  nature  of  commands 

8*  Weudel  v.    Durbin,   26  AVis.  to  an  officer  or  court,  do  not  con- 

390.  fer    rights   on    parties,   in    which 

S'*  People  V.  McCreery,  34  Cal.  case  they  are  generally  mandatory : 

432.  Ibid. 


618  IMPERATIVE — DIKECTOHY.  [§  436 

boundaries  of  a  parish,  were  required  by  the  Act  to  advertise 
the  boundaries  which  they  fixed,  and  to  insert  them  in  their 
award,  and  the  Act  dechired  that  tlie  boundaries  "  so  fixed  " 
should  be  conclusive  ;  a  variation  between  the  boundaries 
set  forth  in  the  award  and  those  advertised  would  vitiate  the 
award,  as  the  requisites  of  the  Act  would  not  have  been 
complied  with  {a).  [So,  where  an  act  permitted  the  appoint- 
ment of  viewers  by  the  court  to  lay  out  a  road,  upon  petition 
designating  the  termini,  a  report  of  the  viewers  appointed 
upon  such  a  petition  showing  an  apparent  departure  from 
one  of  the  termini  designated  therein,  is  not  a  compliance 
with  the  order  or  statute.***]  The  provision  of  the  Union 
Assessment  Act  of  18(52,  regarding  the  deposit  of  tho  valua- 
tion list  for  inspection  was  held  obviously  imperative  :  for 
the  omission  would  have  left  jiersons  aggrieved  by  any 
alterations,  without  a  timely  opportunity  for  ai)pealing  (i^). 

§  43G.  Regulations,  etc.,  of  Acts  Relating  to  Performance  of 
Public  Duties  Directory.— On  the  other  hand,  the  prescriptions 
of  a  statute  [often]  relate  to  the  performance  of  a  public 
duty;  and  to  affect  with  invalidity  acts  done  in  neglect  of 
them  would  work  serious  general  inconvenience  or  injustice 
to  persons  wlio  have  no  control  over  those  intrusted  with 
the  duty,  without  promoting  the  essential  aims  of  the  Legis- 
lature. [In  such  case,  they  are  said  not  to  be  of  the  essence,, 
of  the  substance  of  the  thing  required,""  and,  depending 
upon  this  quality  of  not  being  of  the  essence  or  substance 
of  the  thing  required,'"  compliance  being  rather  a  matter  of 
convenience,  and  the  direction  being  given  with  a  view 
simply  to  proper,  orderly  and  prompt  conduct  of  business,*' 
they  seem  to  be  generally  understood  as  mere  instructions 
for  the  guidance  and  government  of  those  on  whom  the 
duty  is  imposed,  or,  in  other  words,]  as  directory  onl}-.     The 

(a)  K.  V.  Washbiook,  4  B.   &  C.  199.    fSco.  infra,  note  101.] 

733;    R.    V.  Aikvvright,   12  Q.    B.  »»   People    v.     Cook,     14    Barb. 

960.  (N.  Y.)  290  ;  8  N.  Y.  G7  ;  Norwe- 

88  Boyei's  Road,  37  Pa.   St.  257  ;  tijian  Str.,  81  Pa.  St.  349  ;  McKune 

Seidel's    Road,    2    Woodw.    (Pa.)  v.  Wells,  11  C;d.   49  ;  Ilurford  v.. 

275.  Omaiia,  4  Neb.  336. 

ib)  R.  V.  Cborlton  Uuiou.  L.    R.  ^'^  See  eases  in  precedin<?  note. 

b  Q.  B.  5  ;  R.  V.  Ingall,  2  Q.  B.  D.  «'  Ilurford  v.  Omaha,  supra. 


§  436]  IMPERATIVE — IHKECTORY.  Gil) 

neglect  of  them  may  be  pen;il  («),  but  it  does  not 
affect  the  validity  of  the  act  done  in  disregard  of  them.  It 
has  often  been  held,  for  instance,  when  an  Act  ordered  a 
thing  to  be  done  by  a  public  body  or  ])ublic  officers, 
and  pointed  out  the  specific  time  when  it  was  to  be 
done,  that  the  Act  was  directory  only,  and  might  be  com- 
plied with  after  the  prescribed  time  {b).  [Snch  is,  indeed, 
the  general  rule,  unless  the  time  specified  is  of  the  essence 
of  the  thing,"  or  the  statute  shows  that  it  was  intended  as  a 
limitation  of  j^ower,  authority,  or  right.'^J  Thus,  the  13 
Hen.  4,  c.  7,  which  required  justices  to  trj^  rioters  "  within 
a  month"  after  the  riot,  was  held  not  to  limit  the  authority 
of  the  justices  to  that  space  of  time,  but  only  to  render  them 
liable  to  a  penalty  for  neglect  (c).  [Acts  which  required  an 
officer  before  whom  statutory  proceedings  against  an  abscond- 
ing, etc.,  debtor  are  taken,  to  make  report ;"  a  judge  trying 
a  cause  without  a  jury  to  file  his  decision,"  a  referee 
his  report,°°  or  a  public  officer  his  official  bond,"  within  a 
certain  time,  have  severally  been  held  directory.  So,  a 
direction  to  sell  land  for  taxes  at  a  certain  time,  there  being 
nothing  in  the  act  from  which  to  imply  a  prohibition  against 
doing  it  at  a  later  date ;'"'  a  provision  in  a  statute  that  the 
secretary  of  state  should  cause  it  to  be  published  for  three 
months  ;°*  and  a  requirement  that  notice  of  assessments  on  lot 
owners  for  grading,  etc.,  should  be  given  by  publication  for 
ten  days  in  two  daily  j^apers,  "  that  the  parties  may  have  an 

(a)  See  Ex.  gr.  Clarke  v.  Gant.  8  B'k,  3  La.  An.  196  ;  St.  Louis  Co. 

Ex.  252.  22  L.   J.  67;  [Rodebaugh  v.   Spaiks,    10  Mo.  117  ;    Kyan  v. 

V.   Sanks,  2  Watts  (Pa.)  9,  (as  to  Vanlaudiugbam,  7  Ind.  416  ;  and 

solemnization     of      marriages     of  cases  infra, 

infants)  ;  post.  §  440.      See,    also,  (c)  R.  v.  Ingram,  2  Salk.  593. 

Torryv.  Milbury,  21  Pick.  (Mass.)  '^  Wood  v.  Cbapin.   13   N.    Y. 

67.]  509. 

(/>)  Pel-  Littlcdale,  J.,  in  Smith  ^^    Stewart    v.    Slater,    6    Duer 

V.  Jones.  1  B.  &Ad.  334.  (N.  Y.)  83. 

9-  See,  e.  g.,  Webster  v.  French,  9«  Ee  Empire  City  B'k,  18  N.  Y. 

12  111.  302,  ante.  §431.  199. 

33  See  Ibid.  ;  People  v.  Allen,  6  «'  McRoberts  v.  Winant,  15  Abb. 

Wend.    (N.     Y.)    480;     Pond    v.  Pr.  N.  S.  (N.  Y.)  210. 

Negus,   3  Mass.    230  ;    Walker   v.  9*  Ilugg  v.  Camden,  39  N.  J.  L. 

Chapman,    22   Ala.    116  ;  Hart  v.  620. 

Plum,   14  Cal.  148  ;  State  v.  JIc-  «»  State  v.  Click,  2  Ala.  26  ;  so 

Lean,  9  Wis.  292  ;  People  v.  Lake  that  his  failure  to  do  so   did  not 

Co.,  33  Id.  487  ;  Wilson  v.   State  affect  its  operation  :  lb. 


■620 


IMPERATIVE — DIRECTORY. 


[§436 


opportunity  of  having  mistakes  or  crroi'S  corrected."""']  To 
hold  tliat  an  Act  which  required  an  officer  to  prepare  and 
deliver  to  another  officer  a  list  of  voters,  on  or  before  a  cer- 
tain day,  under  a  penalty,  made  a  list  not  delivered  till  a  later 
day  invalid,  would,  in  eifect,  put  it  in  the  power  of  the  person 
charged  with  the  duty  of  preparing  it,  to  disfi-anchise  the 
electors  ;  a  conclusion  too  unreasonable  for  acceptance  (a). 
[So,  an  act  requiring  an  assessment  roll  to  be  returned  within 
forty  days  ;'"  and  a  provision  that  assessments  made  by 
appraisers  appointed  to  appraise  the  value  of  paving,  etc., 
done  by  a  city,  and  to  assess  the  same  on  the  owners  of  lots 
-abutting  on  the  streets  thus  improved,  shall  be  filed  by  the  city 
solicitor  in  the  prothonotary's  office  within  twenty  days  after 
it  was  made,'"  were  held  alike  directory.  And  so,  as  to  the 
time  limited,  was  the  requirement  of  a  statute  directing  the 
secretar}''  of  state  to  advertise  for  sealed  proposals  for  the 
state  printing,  which  provided  that  the  proposals  be  deposi- 
ted in  his  office  "  on  or  before"  a  certain  date  ;'"  and  an  act 
requiring  the  commissioners  of  a  count}'  to  levy  by  a  tax  on 
the  taxable  property  for  the  year  1866  an  amount  sufficient 
to  pay  certain  bounties,  to  volunteers,  whilst  imperative  as 
to  the  levy,  was  held  directory  as  to  time.'"*  In  a  word, 
where  a  statute  fixes  a  time  within  which  public  officers  are 


'00  Pittsburg  v.  Coursin.  74  Pa. 
St.  400  ;  so  that  u  failure  to  make 
such  publication  did  not  invalidale 
the  assessment,  and  an  owner 
might  show  mistakes  and  errors  in 
the  trial  of  a  suit  upon  a  claim 
under  the  same. 

(a)  K.  V.  Rochester,  7  E.  &  B. 
910,  27  L.  J.  Q.  B.  45,  434 ;  Hunt 
V.  Hibbs,  5  II.  &  N.  123,  29  L.  J. 
Ex.  222  ;  Morgan  v.  Parrj%  17  C. 
B.  334,  2.5  L.  J.  141  ;  Brumfitt  v. 
Brcmner.  9  C.  B.  N.  S.  1,  30  L.  J. 
33  ;  U.  V.  Lofthouse,  L.  K.  1  Q. 
B.  433,  35  L.  J.  145  ;  II.  v.  Ingali, 
2  Q.  B.  D.  199. 

10'  Wheeler  v.  Chicago.  24  111. 
105.  In  iSraith  v.  Hard,  59  Yt. 
13,  it  was  held  that  an  act  requir- 
ing listers  to  lodge  in  the  town 
cleric's  office  an  abstract  of  the 
personal  lists  of  all  tax-payers,  for 
their  inspection,  was  mandatory  ; 
in  consonance  with  the  principle 


laid  down  in  Willard  v.  Pike,  Id. 
202,  that  statutory  regulations 
which  relate  to  the  rights  of  tax- 
payers are  conditions  jjrecedent  to 
the  legality  of  the  tax,  but  those 
for  the  information  of  the  lister,  to 
promote  method,  are  directory. 

'0-  Magee  v.  Com'th,  40  Pa.  St. 
358. 

'03  Free  Press  Ass'n  v.  Nichols, 
45  Vt.  7  (comp.  Webster  v. 
French,  12  111.  302,  ante,  ^  431)  ; 
though  the  direction  to  advertise 
Ava^  imperative:  Ibid. 

'"■'  Stale  V.  Harris,  17  Ohio  St. 
G08.  "  The  intention  of  the  Legis- 
lature was  to  invest  the  volunteers, 
in  the  counties  to  which  the  act 
api^iies,  with  the  right  to  the 
bounty  ;  and  it  was  not  intended 
to  make  the  right  dependent  on  the 
mere  choice  or  pleasure  of  the 
commissicmers  :"  lb.,  p.  G15. 


§  437]  IMPERATIVE DIRECTORY.  621\ 

to  perform  some  act  touching  the  rights  of  otliers,  and  there 
is  no  substantial  reason  apparent  from  the  statute  itself,, 
from  other  statutes,  or  from  the  consequences  of  delay — 
e.  g.,  a  wrong  to  the  intervening  rights  of  third  ])arties"* — 
why  the  act  might  not  be  as  well  done  after  the  expiration 
of  the  period  limited  as  during  the  same,  or  indicating  that 
the  Legislature  intended  it  should  not  be  done  at  all  if  not 
within  that  period,  the  latter  will,  as  regards  third  persons,, 
be  treated  as  director}^,  and  the  fixing  of  it  will  not  invali- 
date or  prevent  official  acts,  under  the  statute,  after  the 
expiration  of  the  prescribed  period.'"" 

§  437.  Matters  of  Procedure  by  Public  Officers. — [In  general,, 
statutes  directing  the  mode  of  proceeding  by  public  officers 
are  deemed  advisory,  and  strict  compliance  with  their  detailed 
provisions  is  not  indispensable  to  the  validity  of  the 
proceedings  themselves,  unless  a  contrary  intention  can  be 
clearly  gathered  from  the  statute  construed  in  the  light  of 
other  rules  of  interpretation.""  Thus,  an  act  requiring  that 
the  minutes  be  signed  by  the  judges  of  the  superior  and 
inferior  courts  ;""  that  the  lists  of  voters  shall  be  signed 
by  the  officers  who  prepared  them  ;""  that  a  surrogate- 
shall  take  from  the  person  to  whom  he  grants  letters  of 
administration  a  bond  with  two  or  more  sureties  ;""  that  a 
clergyman  marrying  a  minor  shall  require  a  certificate  of 
his  or  her  parent's  or  guardian's  consent,'"  and  tliat  all 
marriages  shall  be  solemnized  by  the  contracting  jiarties 
taking  each  other  for  husband  and  wife  before  twelve 
sufficient     witnesses,    that    a    certificate    of     marriage    be 


105  Bell  V.  Taylor,  37  La.    An.  Ibid.      But   an  act    requiring  the- 

56.  commissions     of    officers     to    be 

ios  State  V.  McLean,  9  Wis.  292;  signed     by     certain     persons      is 

Limestone  Co.  v.  Rather,  48  Ala.  mandatory  :  People  v.  Willard,  51 

433  ;  Bell  V.  Taylor,  supra.  Hun  (N.  Y.)  580.     See   People  v. 

10'   See   Bish.,  Wr.   L.,    §  255  ;  Murray.  70  N.  Y.  521  ;  comp.  Peo- 

Potter's    Dwarris,    p.     222,     etc.,  pie  v.  Fitzsimmons.  68  Id.  514. 

note  29  ;  Holland  v.  Osgood,  8  Vt.  'o^  Morgan  v.   Parry,    17  C.   B. 

280;  Jones  v.   State,  1  Kan.  273;  334. 

and  cases  infra.  ^'o  Bloom    v.    Burdich,    1    Hdl, 

108    Justices    V.    House,   20  Ga.  (N.    Y.)  130. 

328.     Thcyare  valid,  if  not  signed,  "i  Rodebaugh  v.  Sanks,  2  Watts 

until  shown  to  h.ave  been  rejected  (Pa.)  9.     Consent    given    by    the- 

by  the  court ;  nor  need  they  state  parent     or     guardian     personally, 

the    place    where    the  court    sat :  present  is  sufficient  :  lb. 


(522  nii'KKATivK — i)iuK(T()i;v.  [g  437 

registered,  etc.,"'"  have  all  been  lieki  to  be  merely  direc- 
tory. Such  also  was  the  eonstrnction  of  a  provision  in 
a  city  ehartcM-  rc(|uiriun-  the  oath  of  olhce  to  be  administered 
by  the  mayor  to  all  persons  appointed  to  office  under  the 
municij)al  govermncnt,"^  and  the  j)rovision  in  an  act  author- 
izini;  a  town  to  issue  l)onds,  to  be  sii!;ned  by  the  chairman  of 
the  town  board  of  supervisors  and  the  town  clerk,  that  they 
should  have  annexed  to  them  a  certain  certificate  by  the 
■clerk  of  the  county  board  and  supervisors  as  to  the  official 
character  of  the  persons  subscribin<^  and  the  <^enuineness  of 
their  signatures."*  So,  where  an  act  empowered  the  govern- 
ment of  a  city  to  divide  the  same  into  sewerage  districts,  to 
devise  plans  for  the  sewerage  of  such  districts,  and  directed 
that  copies  of  the  complete  plans  should  be  made  and  filed  in 
certain  municipal  offices,  and  that,  upon  completion  of  the 
plan  of  sewerage  of  an}'-  district  and  tiling  of  copies  thereof, 
contracts  might  be  made,  it  was  held  that  clearly  the  latter  pro- 
vision indicated  that  the  making  of  contracts  should  not  be 
postponed  to  the  filing  of  the  complete  plans,  and  that  the  fil- 
ing of  the  plan  of  sewerage  for  a  certain  district  was  not  a 
prerequisite  to  the  validity  of  contracts  and  assessments  for 
the  construction  of  such  district  scwer.'"J  The  Poor  Law 
Amendment  Act  of  1834:,  in  providing  that  the  Com- 
missioners should  direct  the  elections  of  one  or  more 
guardians  for  each  parish  included  in  the  Union,  did  not 
make  the  constitution  of  the  r>oard  of  Guardians  invalid 
because  one  parish  refused  to  elect  a  guardian  («).  The 
enactment  in  the  Ecclesiastical  Dilapidations  xVct  of  1871, 
which  provides  that  within  three  months  of  the  avoidance  of 
a  benefice,  the  bishop  shall  dii-ect  the  surveyor  to  report  the 
sum  required  to  make  good  the  dilapidations,  is  directory 
only  as  to  the  time  ;  for  it  was  a  duty,  not  a  power,  which 
the  Statute  imposed  on  the  bishop  ;  and  his  neglect  would 
otherwise   have     defeated    the    object   of   the    Statute    by 


Hi  Ibid.  115  Matter   of   New   York    Piot. 

"■'  Caiiiff  V.  New  York,  4  E.  D.      Epis(;.  Publ.  School,  47  N.  Y.  556. 

Smitli  (N.  Y.)  4:30.  (a)  R.    v.    Todmordeu,  1    Q.    B. 

^'^  Luckuwiiniiii,      etc.,     Co.  v.      185. 
Little  Wolf,  38  Wis.  153. 


§  -JroS]  IMPERATIVE DIKECTOIiY. 


623 


rendering  the  estate  of  the  lute  incumbent  exempt  from 
liability  for  his  dilapidations  [a).  The  5  Geo.  4,  c.  84, 
luiving  enacted  thnt  when  any  convict  adjudged  to  trans- 
porlatioii  by  any  British  Court  out  of  the  United  Kingdom 
was  brought  to  England  to  be  transported,  it  should  be  law- 
ful to  imprison  him  in  any  place  of  continemeiit  provided 
under  the  Act,  it  was  held  that  if  the  place  in  which  a 
prisoner  was  confined  was  not  one  of  the  appointed  places, 
the  officers  concerned  might  be  liable  to  censure,  but  the 
detention  was  not  unlawful  so  as  to  entitle  the  prisoner  to  be 
discharged  {h).  [And  though  a  statute  required  a  bond  to 
secure  the  rent  of  a  public  bridge,  a  promissory  note  given 
instead  thereof  was  lield  valid  ;"°  nor  was  non-compliance 
with  a  statutory  requirement  of  specific  designation  of  the 
time  of  commencement  of  a  statute  held  to  preclude  its 
immediate  operation  where  such  an  intent  was  apparent ;'" 
or  a  deed  by  a  public  ofticer  requiring  two  witnesses  to  be 
ineffectual  when  attested  by  only  one."* 

§  438.  Effect  of  Public  Inconvenience  and  Private  Injury. — [On 
the  ground  of  intolerable  public  inconvenience,  which  it 
would  be  unreasonable  to  suppose  the  Legislature  to  have 
intended,]  the  acts  of  aldermen  who  had  been  in  office  for 
several  years  without  re-election,  M^ere  held  valid  until  their 
successors  were  appointed  ;  the  provision  that  they  should  be 
elected  annually  being  regarded  as  directory  only  (c).  [Simi- 
larly are  treated  the  provisions  of  public  election  laws  when 
necessary  to  reach  a  correct  result,'"  or  sustain  the  elec- 
tion— as,  e.  g.,  provisions  concerning  the  manner  in  which 
the  ballot  boxes  shall  be  secured  after  the  canvass  is  com- 
pleted,"" or  the  time  during  Mdiich  the   polls  are  to  be  kept 

(a)  Per  Deninan,   J.,   in   Caldow  Aldgate  v.    Slight,  2  L.   M.   &  P. 

V   Pixell,  3  C.  P.  D.  563  ;  Gleaves  663.     See  R.  v.  Corfe  Mullen.  1  B. 

V.  Marriner,  1  Ex  D.  107.  &    Ad,    311.       [See,    for    another 

(h)  Brenan's  Case,   10  Q.  B.  493.  instance  of  this  kind,  ante,  §  433. 

ii«  Centrnl     B'k     v.      Kendrick,  Margate  Pier  Co.  v.  Ilannam,  3  B. 

Dudley  (Ga.)  06.  &  A.  266.]  ,..„., 

11'  Baker  v.    Compton,  53  Tex.  'i«  Duncan  v.    Shenk.   109  Ind. 

253.  26;  but  comp.  Taylor  v.  Taylor,  10 

118  Comm'rs  of  U.  S.  Dep.   Fund  Minn.  107. 
V.  Chase.  6  Barb.  (N.  Y.)  37.  ""  People  v.  Livingston,  79  N. 

(c)  Foot  V.   Truro,  1    Stra.   626.  Y.   279.     See,  also,   as  to  arrange- 

See   also    Lorant  v.   Scadding,   13  ment   of    ballot   boxes  :    Weil    v. 

il.  \i.  687,  19  L.  J.   M.   C.   5,'  and  Calhoun,  25  Fed.  Rep.  865, 


624  IMrERATIVE — DIRECTOllY.  [§  438 

open,"'  or  at  which  tliey  sliall  bo  closed'" — and  even  the 
reqnireinontof  annu;d  elections  of  eoi-porate  officers'"  and  the 
provisions  of  a  corporate  charter  and  by-laws  as  to  the  form 
of  acceptance  of  official  bonds  by  the  directors.'"  And]  it 
lias  been  held  that  the  ne<ijlect  of  merely  formal  requisites 
in  keepina;  the  re<>-ister  of  the  shareholders  of  a  joint  stock 
company,  however  fatal  for  some  purposes,  is  iuimaterial  as 
between  the  company  and  its  shareholders.  Thus,  the  pro- 
vision that  the  register  should  be  sealed,  though  essential  to 
its  being  producible  in  evidence,  is  in)material  as  regards 
making  a  person  a  shareholder,  if  there  be  in  fact  a  book 
bona  fide  intended  to  be  a  register.  But  the  neglect  to 
number  and  appropriate  the  shares  would  be  fatal  {a).  And 
the  provisions  in  the  Companies  Act  of  1862,  directing  that 
a  registei-  shall  be  kept  of  all  mortgages  and  charges  on  the 
property  of  the  company,  to  be  open  to  the  inspection  of 
creditors,  and  imposing  penalties  on  any  of  the  company's- 
officers  who  contravene  them,  are  directory,  so  that  they  do 
not  affect  the  validity  of  unregistered  mortgages  ih).  [So, 
the  rule,  whether  established  by  statute,  charter  or  by-laws, 
that  the  stock  of  a  corponition  shall  be  transferable  only 
upon  its  books,  is  treated  as  directory  in  so  far  that  it  does 
not  prevent  the  title  to  shares  from  passing  by  a  transfer 
made  otherwise.'"  "  But  as  the  stock-book  is  the  evidence 
of  the  relation  between  the  member  and  the  association,  the 
certificate  being  such  only  secondarily,  and  as  the  corpora- 

'^'  Fry  V,  Boolb,  19  Oliio  St.  25;  Ames,  Oorp.,  ^§  254,  5*84,  319. 

so  tli.at  the  closintj  of  the  polls  for  («)    Per    cur.    in    IIciKlcTson    v. 

one  hour  for  (limicr  will  not  vitiate  Royal    British   Bank,    7   E.  &  B. 

the  election,  although  the  law  con-  ;J56,   2G   Ij.    J.  112;  Wolverhamp^ 

Unnplales  the  keeping  open  of  the  ton  Water-works  Co.  v.   Ilawkes- 

polls    continuously     between    the  ford,  11  C.  B.  N.  S.  456,  29  L.  J. 

prescribed   hours  of  opening  and  121,    31    Id.    184;     Southampton 

closing.  Dock  Co.  v.  Richards,  1  M.  &  Gr. 

'-■•'  Swepton  V.  Barton,  39  Ark.  448  ;  London  Giand  Junction  R. 

549.  Co.  V.  Fj-eeman,  2  Id.  fiOO. 

>'^3  See  Bish.,    Wr.    L.,   i?  255  ;  {b)  Re  Marine  Mansions  Co.,  L. 

Angell  &  Ames.  Corp.,  §^  142-144,  R.    4  Kq.  601;   comp.    Re  Patent 

771  ;  lloboken  B.  A.  v.  Martin,   13  Bread  Co.,   L.  R.    7  Ch.  289  ;  Re 

N.  ,J.  Eq.  428.     Directions  to  non-  AVynn     Hall    Co.,    10    Eq.    515; 

official   persons  may   be  directory  Smith's  Case,    579.      See  another 

equ;dly  as  those  to  officials  :  Bish.,  illustration  in  Bosanc[uet  v.  Wood- 

Wr.  L.,  i5  255.  ford,  5  Q.  B.  310. 

•■'■'  Bank  of  U.  S.  v.  Dandridge,  '-^  Duke  v.  Nav.  Co.,  10  Ala.  82". 

12  Wheat.  64.      And  see  Whitney  Sec  Angell  &  Ames,  Corp.,  §  354;. 

V.  Emmelt,  Baldw.  803  ;  Angell  &  Endl.,  Build'g  Ass'ns,  §  446. 


§  439]  IMPERATIVE — DIRECTORY.  625 

tion  itself,  when  perfoniiino^  a  corporate  duty,  springing 
out  of  the  membershiji  rehition,  and  not  dealing  with  its 
stockholder  on  the  security  of  his  stock  in  a  distinct  contract 
relation,  need  consult  nothing  further  than  its  own  records, 
whoever  would  demand  the  ])iivileges  of  a  stockholder  being 
bound  to  produce  his  title,  and  ask  to  be  permitted  to' 
participate  ;  it  is  evident  that  an  assignment  of  the  stock  not 
entered  upon  the  books,  though  it  passes  a  perfect  title  as 
between  the  parties  to  the  assignment,  is  only  an  equitable 
transfer,  and,  to  be  made  absolutely  available,  and  give  the 
transferee  the  privileges  of  a  recognized  stockholder,  must 
be  produced  to  the  corporation,  and  a  transfer  effected,  or, 
at  least,  demanded. "'*°  Consequently,  where  a  member  of 
a  building  association,  who  had  assigned  his  stock  therein, 
and  delivered  the  certificate  to  a  bank  as  collateral  security, 
with  power  of  attorney  to  transfer,  no  transfer,  however, 
being  made  on  the  books  of  the  association,  borrowed  money 
from  the  latter  upon  his  shares,  and  upon  the  corporate 
books,  transferred  them  to  the  association,  and  upon  the 
expiration  of  the  association,  its  officers  distributed  its  assets 
amongst  the  stockholders  shown  by  the  books,  including  the 
association,  without  notice  from  the  bank  or  to  the  bank,  it 
was  held  that  they  were  not  liable  to  the  latter  on  the  cer- 
tificates held  by  it.'"] 

§  439.  Whei'e  an  Act  provided  that  no  beer  license  should 
be  granted  to  any  person  who  was  not  a  resident  occupier  of 
the  premises  sought  to  be  licensed,  under  the  penalty  of  the 
license  being  null  and  void;  and  it  required,  further,  that 
the  applicant  should  produce  to  the  licensing  ofiicer  a  cer- 
tificate from  the  overseer  of  the  parish,  that  he  was  such 
resident  occupier  ;  the  latter  provision  was  considered  to  be 
only  directory,  and  a  license  obtained  without  the  certificate, 
good.  The  omission,  from  the  later  passage,  of  the  nullif}-- 
ing  Avords  which  were   appended  to  the  former,  were  some 

'■-"Ibid.,  cit.  Bank  of  Commerce's         '^''    B'k    of    Commerce's    App.,. 

App.  ,73Pa.   St.   59;  Dobinson  v.  supra.     There  was  no  provision  in 

Hawks,    16   Sim.    407  ;   12   L.    T.  tiie  association's  cliarter  requiring- 

Kcp.  2o8  ;  39  Engl.  Ch.  Hep.  40(! ;  transfer      upou    the     books.       A 

German  Union   B.  &   S.    Ass'n  v.  fortiori,     tliis    rule    would      bold: 

Sendmayer,  50  Pa.  St.  67  ;  Field,  where  there   was  such  a  require- 

CoiD.,  j^  132,  note  3.  ment.  < 

40 


626  IMPERATIVE — DIRKCTOKY.  [§  439 

indication  of  a  difference  of  intention  ;  besides,  though  it 
■was  reasonable  that  a  license  to  a  person  not  properly  quali- 
fied should  be  void,  it  would  hardly  be  reasonable  that  it 
■should  be  void,  if  the  lioldei-  was  duly  qualified,  merely 
because  the  licensing  ofiicer  had  not  been  satisfied  of  the 
qualification  by  the  particular  means  provided  by  the  Act; 
wliich  might  have  been  wrongfully  withheld  by  the  over- 
seer (a).  The  Public  Health  Act  of  1848,  in  empowering  the 
Local  Board  of  Health  to  enter  into  all  contracts  necessary 
for  carrying  the  Act  into  execution,  contains  two  provisions 
which  may  be  taken  as  illustrating  the  distinction  under  con- 
sideration. It  enacts  that  contracts  exceeding  ten  pounds 
in  value  shall  be  sealed  with  the  seal  of  the  board  ;  that  they 
shall  contain  certain  particulars;  and  that  "  every  contract 
so  entered  into  shall  be  binding;  provided  always  . 
that  before  contracting  for  the  execution  of  any  works,  the 
board  shall  obtain  from  the  surveyor  a  written  estimate  of 
the  probable  expense  of  executing  it  and  l^eeping  it  in  repair." 
The  first  of  these  requisites  was  decided  to  be  imperative, 
and  a  contract  unsealed  was  consequently  held  inoperative 
against  the  board  and  the  rates.  The  power  to  contract  so 
as  to  bind  the  rates  could  not  have  been  exercised  if  it  had 
not  been  given  by  the  Act ;  and,  being  entirely  the  creature 
of  the  statute,  it  could  not  be  exercised  in  any  other  manner 
than  that  prescribed  by  the  statute  [h).  But  the  provision 
wdnch-required  an  estimate  was  held  to  be  merely  a  direction 
or  instruction  for  the  guidance  of  the  board,  and  not  a 
condition  ])recedent,  the  performance  of  which  was  essential 
to  the  validity  of  the  contract  (c).  It  was  remarked,  that  in 
the  former  case,  the  party  contracted  with  knew,  or  had  the 
means  of  knowing,  what  forms  were  required  by  the  Act,  and 
could  see  to  their  observance  ;  while  in  the  latter,  he  had  not, 

(a)  Thompson  v.  Ilaivoy,  4  11.  &  v.  Uasker,  7  Q.  B.  D.  529,  50  L.  J. 

In.  254,  28  L.  J.   M.  C.  16:3.  444  ;   Young  v.  Leaniinirlon,  8  Q. 

(A)  11  &  12  Vict.    c.   6:5,   s.  85,  15.    D.    579.  .51    L.  J.  292  ;    K.   v. 

rcpcaletl   and    re  enacted    in    sub-  Norwich,    30   W.    R.    752,   Q.    B. 

stance  by  38  &  39  Vi(^t..  c.   55,  ss.  May,  1882.     Couip.  Cole  v.  Green, 

173,    174  ;  Frend  v.  Dennet,  4  C.  6  M.  &  Gr.  682. 
B.  N.  S.  57(5  ;  27  L.  J.  314  ;  IIuu,         (c)   Nowell    v.    Mayor,    etc.,    of 

V.  Wimbledon  Loc.  Btl.,  4  C.  P.  Worcester,   9   Ex.    467,   23  L.    J. 

1).  49,  48  L.   J.  207  ;  Ashbury  v.  139  ;    Bonar    v.    Mitchell,    5    Ex. 

Kichif,  L.  K.  7  II.  I..  G53  ;   Eaton  415. 


^§  440,  441]  IMPOSSIBILITIES.  627 

it  was  said,  the  same  facility  for  ascertaining  whether  the 
board  had  consulted  their  surveyor.  The  non-observance  of 
the  latter  provision  would,  however,  probably  impose  on 
the  board  the  penalty  of  havint;  no  remedy  against  their 
•constituents  for  re-imburseraent  {a). 

§  440.  Remedy  for  Omission  of  Directory  Duty. — It  is  no 
impediment  to  the  construction  [of  a  provision  as  beino- 
directory],  that  there  is  no  remedy  for  non-compliance  with 
the  direction.  The  Act  of  2  Hen.  5,  which  requires  justices 
to  hold  their  sessions  in  the  first  week  after  Michaelmas, 
Epiphany,  Easter,  and  the  translation  of  St.  Thomas  the 
Martyr,  has  always  been  held  to  be  merely  directory  (b). 
So,  the  6  Rich.  2,  c.  5,  which  requires  the  justices  to  hold 
their  sessions  in  the  principal  towns  of  their  county,  was 
held  to  be  directory,  not  coercive  (c).  And  yet  it  would  be 
difficult  to  say  that  there  would  be  any  remedy  against 
justices,  for  appointing  their  sessions  on  other  days  or 
places  than  those  prescribed  by  the  Statute  {d).  [Nor  con- 
versely, does  the  fact  that  a  provision  is  regarded  as  direc- 
tory only  exonerate  the  person  charged  with  its  observance 
and  guilty  of  its  disregard  from  punishment,'"  or  from 
liability  to  a  party  injured  by  his  short-coming."'] 

§  441.  Impossibilities  in  the  Nature  of  Things. — Enactments 
which  impose  duties  on  conditions  are,  when  these  are  not 
conditions  precedent  to  the  exercise  of  a  jurisdiction,  sub- 
ject to  the  maxim  that  lex  non  cogit  and  impossibilia  aut 
inutilia.  They  are  understood  as  dispensing  with  the 
performance  of  what  is  prescribed,  when  performance  is 
impossible    {e) ;    for    the    law,    in    its    most    positive    and 

(a)  Pel-  Parke,  B.,  Id.  See  East  (e)  As  to  performance,  where 
Anglian  R.  Co.  v.  E.  C.  R.  Co..  11  the  duty  has  not  been  imposed  by 
C.  B.  775,  21  L.  J.  23  ;  McG-regor  superior  authority,  but  has  been 
V.  Deal,  etc.,  R.  Co.,  18  Q.  B.  618,  voluntarily  assum'ed,  see  Paradine 
22  L.  J.  69  ;  Royal  British  Bank  v.  Jane,  27,  Aloyn,  and  the  cases 
V.  Turquand,  5  E.  &  B.  248 ;  cited  in  Hall  v.  Wright,  E.  B.  & 
Nugent  V.  Smith,  1  C.  P.  D.  423.  E.  746.     See,  also.  TaVlor  v.  Cald- 

(b)  2  -Hale,  ^  C.  50.  well,  3  B.  &  S.  826  ;  Boast  v.  Firth 

(c)  2  Hale,  F  C.  39.  L.  R.  4  C.  P.  1  ;  Appleby  v.  Myers, 
id)  Per  Parke,  B.,  in  Gwynne  v.      L.   R.   1  C.  P.  615,  2  C.  P.  651  ; 

Burnell,  2  Biug.  N.  C.  39.  Clifford  v.    Watts,  L.  R.  5  C.  P. 

'••"  See,  ante.  §  436.  577  ;  Howell  v.  Coupland,  L.  R.  9 

'-«  Brown    v.    Lester,    21  Miss.      Q.  B.  462  ;  and  Nichols  v.   Mars- 

392.  land.  2  Ex.  D.  4. 


C.28 


IMPOSSIBILITIES. 


[§441 


pcroinptory  injniietionp,  is  understood  to  disclaim,  as  it  does 
ill  its  o;eneral  aphorisms,  all  intention  of  com])ellin<i;  im])os- 
sil)ilities,  and  rliis  i;;eneral  exception  is  a  general  rule  of  stat- 
utory construction.'™  Thus,  where  an  Act  provided  that  an 
appellant  should  send  notice  to  the  respondent  uf  his  haviui^ 
entered  into  a  recoojnizance,  in  default  of  which  the  ai)peal 
should  not  he  allowed,  it  was  held  that  the  death  of  the 
respondent  before  service  was  not  fatal  to  the  appeal,  but 
dispensed  with  the  service  (a).  In  the  same  way,  the  pro- 
vision of  the  20  &  21  Vict.  c.  43,  which  similarly  makes 
the  transmission  of  a  case  stated  by  justices  to  the  superior 
courts,  by  the  appellant,  within  three  days  from  receiving 
it,  a  condition  precedent  to  the  hearing  of  the  appeal  {h), 
was  held  dispensed  with,  when  the  Court  was  closed  during 
the  three  days  ;  since  com])liance  was  impossible  (c).  [And 
so,  of  course,  an  act  rerpiiring,  undef  penalties,  the  measure- 


's" Boody  V.  Watson,  (N.  II.)  4 
New  Ena:!.  Rep.  553.  569,  cit.  The 
Gc'iu'tou.s,  2  Dods  322,  323  :  Hall 
V.  iSiillivan  It.  K.,  21  Mon.  Law 
Kcp.  O.  S.  138,  147.  See.  also, 
Bish..  Wr.  L.,  t^  41.  On  Iho  priuci- 
l)le  lex  non  cogit  ad  vana  seu 
iuutiiia.  it  was  held,  in  Ilunlington 
V.  Nicoll,  3Johns.  (N.  Y.)5G6,  598, 
that  an  order  that  had  long  since 
expired  iieednot  be  reversed  tliough 
enimeous.  And  invoking  the 
principles  that  lex  uon  intendil 
ali(|iii(l  inipossibile — nil  tacit 
Iru-tra — nil  jubet  Irustra,  and  that 
it  is  the  duty  ot  the  court  to  con- 
strue a  statute,  if  possible,  lit  res 
niaiiis  valeat  quam  pereat  (cit. 
lluber  V.  Keily,  53  Pa.  !St.  112, 
115,  117;  and'. see  ante,  §ii  265, 
178-181),  the  Supreme  Court  of 
Pennsvlvania.  in  the  Election 
Cases," 65  Pa.  St.  20,  30-31,  a  stat- 
utory provision  recpiiring  the  eom 
plaint  in  a  contested  election  case 
to  be  verified  by  affidavit  that  the 
"  faets  set  forth  in  such  complaint 
are  true,"  was  satislied  by  an 
affidavit  by  comjilainanls  that  they 
-were  true"  "to  the  best  of  their 
knowledge  and  belief."  And  in 
.Moflatt  V.  Montgomery,  68  Mo. 
162,  it  \vas  held,'  that,  where  the 
objection,  in  an  election  contest, 
was  not  to  the  voters,  but  to  the 
action    of   the   election    officers  in 


counting  hlaiikti  as  votes,  the  re- 
quirement of  the  statute  that  the- 
notice  of  contest  shall  state  the 
names  of  the  voters  objected  to, 
was  inapplicable.  See.  also.  State  v. 
Piper,  17  Neb.  614,  as  to  effect  of 
statute  limiting  time  for  holding 
an  election  to  a  less  numl)cr  of 
days  than  required  for  registration 
of' voters,  so  that  no  registration 
was  had. 

(a)  \{.  V.  Leicestershire,  15  Q.  B. 
88.  See,  also,  Brumtilt  v.  lioberts, 
L.  K.  5  C.  P.  224.  [Compare, 
however,  Claik  v.  Snyder,  40  liun 
(N.  Y.)  330,  post,  §"443,  and  11. 
V.  Pickford,  ante,  i^  10. 

(b)  Morgan  v.  Edwards.  5  II.  & 
N.  415,  29  L.  J.  M.  C.  108  ;  Wood- 
house  V.  Woods,  Id.  149  ;  Stotie  v. 
Dean,  E.  B.  6c  E.  504  ;  27  L.  J. 
Q.  B.  319  ;  Norris  v.  Carrington, 
16  C.  B.  N.  S.  10  ;  Exp.  llarnson, 
2  DeG.  &  J.  229  ;  Exp.  Hull  Bank, 
27  L.  J.  Bank.  16  S.  C. 

(c)  Mayer  v.  Harding,  L.  R.  2  Q. 
B.  410  ;  see  R.  v.  Allen,  4  B.  &  S. 
915,  33  L.  J.  M.  C.  98.  [Where, 
througli  the  destruction  of  the 
papers  belonging  to  a  case,  by  the 
burning  of  the  court  house,  it 
bec;ime  impossible  to  present  a 
transcript  as  required  for  review 
in  tlic  Supreme  Court,  the  case  was 
remanded  for  a  new  trial  :  Miller 
V.  Shotwell,  38  La.  An.  103.] 


§  442]  IMPOSSIBILITIES.  629 

ment  of  wood  offered  for  sale  to  be  made  by  sworn  survey- 
ors of  the  town  when  such  have  been  appointed,  leaves  the 
parties  free  to  ascertain  the  quantity  by  any  measurer 
appointed  for  that  purpose  by  themselves,  where  no  legal 
surveyors  of  wood  have  been  appointed.'"] 

§  442.  Impossibilities  Arising  from  Acts  of  Parties. — In  such 
■cases,  the  provision  or  condition  is  dispensed  with,  when 
compliance  is  impossible  in  the  nature  of  things.  It  would 
seem  to  be  sometimes  ecpially  so,  where  compliance  was, 
though  not  impossible  in  this  sense,  yet  im|)racticable, 
without  any  default  on  the  part  of  the  person  on  whom  the 
•duty  was  thrown.  An  Act,  for  instance,  which  made 
actual  payment  of  the  rent,  as  well  as  the  renting  of  a  tene- 
ment, essential  to  the  acquisition  of  a  settlement,  would 
probably  be  complied  with,  if  the  rent  was  tendered, 
though  it  was  not  accepted  {a).  If  the  respondent  in  an 
appeal  kept  out  of  the  way  to  avoid  service  of  the  notice  of 
appeal,  or  at  all  events  could  not  be  found  after  due  dili- 
gence in  searching  for  him,  the  service  required  by  the 
statute  would  probably  be  dispensed  with  (b).  [So,  under 
an  act  requiring  a  citation  of  appeal  be  served  upon  the 
opposite  party  personally,  if  resident  in  the  state,  a  service 
upon  counsel  was  held  sufficient  where  the  appellee  caused 
herself  to  be  sequestered  and  could  not  be  found  ;*^*  and  so 
was,  under  a  statute,  a  notice  of  appeal  filed  in  the  clerks 
office  where  the  appellee  had  failed  to  designate  a  person 
to  receive  notices  in  the  case.'^']  So,  if  the  appellant  was 
entitled  to  appeal,  subject  to  the  condition  of  giving  security 
for  costs  within  a  certain  time,  he  would  be  held  to  have 
complied  with  the  condition,  if  he  offered  and  was  readj'  to 

'31  Coombs  V.    Emery,    14    Me.  69  Iowa  458  ;  Tuttle  v.  Griffin,  64 

404.     And  see  Abbott  v.  Goodwin,  Id.  455. 

87   Id.    203.     Tbe   provision    of  a  {a)  Per    Bayley,    J.,    in    R.    v. 

statute  rcquiringninetydu_ys' notice  Amptliiil,  2  B.  &  C.  847. 

of  expiration  of  time  for  redemp-  (b)   Per     cur.      in     Morgan     v. 

tion  before  issuing  a  deed  for  land  Edwards,   and  per  Cronipton,   J., 

sold   for   taxes,    to   the   person   in  and   Hill,    J.,    in    Woodliouse   v. 

whose   name   tbe   land  was  taxed  Woods,  ubi  sup.     See,  also,  Syred 

iind   to   the   person  in   possession,  v.  Carruthers,  E.  B.  &  E.  469. 

was  held  dispensed  with  where  the  ^^'-  Marshall  v.  Watrigant,  13  La. 

owner   was  unknown  and  no  one  An.  619. 

in  possession  :  Burdiok  v.  Connell,  '^-^  Brantley  v.  Jordan,  90  N.  C. 

25. 


(530  IMI-US-llilLITlES.  [§  443' 

complete  tlie  security  witliiii  the  limited  time,  tliongh  it 
was,  owing  to  the  act  of  the  court,  [or  of  the  clerk  there- 
of,'"'*] or  of  the  respuiideut,  not  completed  till  long  after  («)» 

§  443.  Impossibilities  upon  wrhich  Jurisdiction  is  Conditioned. — 
Where,  however,  the  act  or  thing  I'cquired  by  the  statute  is 
a  condition  precedent  to  the  jurisdiction  of  the  tribunal, 
compliance  cannot  be  dispensed  with  ;  and  if  it  bo  impossible, 
the  jurisdiction  fails.  It  would  not  be  compotont  to  a  Court  to 
disj)ense  with  what  the  Legislature  had  nuide  the  indispens- 
able foundation  of  its  jurisdiction.  Thus,  the  Act  which 
enacts  that  justices,  at  the  hearing  of  a  bastardy  summons, 
"  shall  hear  the  evidence  "  of  the  mother,  and  such  other 
evidence  as  she  may  adduce;  and  which  authorizes  them  to 
make  an  affiliation  order  "if  the  mother's  evidence  be 
corroborated  in  some  material  |)articular  by  other  testimony," 
makes  tlie  evidence  of  the  mother  so  essential  to  the  juris- 
diction, that  no  order  conid  be  made  without  it,  although  the 
woman  died  before  the  hearing  (h).  So,  under  the  County 
Courts  Act,  1875,  which  empowers  a  party  to  move  the 
appellate  Court  or  a  judge  at  chambers  for  a  new  trial  "  within 
eight  days  after  the  decision,"  the  time  could  not  be  extended 
by  citiier  Court  or  judge  (c).  Under  the  13th  section  of  the 
Admiralty  Act  of  1861,  which  gives  the  Court  of  Admiralty 
the  same  powers,  when  a  vessel  or  its  proceeds  are  nnder 
ari'cst,  as  the  Court  of  Chancery  has  nnder  the  Merchant 
Sliipping  Act  of  1854,  over  suits  for  limiting  the  liability  of 
ship-owners,  no  jurisdiction  could  be  exercised  by  the  former 
Court,  when  the  ship  was  lost.  The  jurisdiction  of  the 
Court  depended  on  the  ship,  or  the  proceeds  of  its  sale,  being 
nnder  arrest;  and  the  ship-owner  conld  not  give  it  juris- 
diction by  paying  into  Court  a  sum  equivalent  to  its  value 
or  proceeds  (d).  [In  general,  wherever  the  Legislature, 
declares  that  an  act  shall  not  be  performed  except  on  a  con- 

'"  See  Lewis  v.  Hennen,  13  La.  (c)  38  &  39  Vict.  c.  50  ;  Brown 

An.  259  ;  Barton  v.  Kavanaugli,  12  v.  Sliaw,  1   E.v.  D.  425  ;  Tcnnant 

Id.  :!:52.  '^  V.     Pvavvlinirs,    4    C.     P.    U.   133. 

(a)  Watcrton  v.  Baker,   L.    R.  3  \S.  P.,  Seymour  v.  Judd,  2  N.   Y. 

Q,  B.  173  ;  and  sec  R.   v.  Aston,  1  464.] 
L.  M.  &P.  401.  (r/).7;imes  v.    S.  W.   R.   Co..  L. 

(/))  R.  V.  Armvtage,  L.    R.  7  Q.  R.   7  Ex.  287.       See,  also,   R.   v. 

B.  773.  "  Belton.  11  Q.  B.  379. 


^  448]  iMPossiBiLiriES.  631 

dition  precedent, and  it  is  impossible  to  perforin  the  condition 
the  latter  does  not  fall,  but  the  prohibition  is  absolute."* 
And  so,  where  a  right  or  jurisdiction  is  given  based  upon 
certain  conditions,  if  tliey  are  or  become  impossible  of  per- 
formance, the  right  or  jurisdiction  cannot  be  exercised. 
Tims,  under  an  act  giving  a  plaintilf  in  suits  upon  certain 
causes  of  action  the  riglit  to  demand  judgment  against  the 
defendant  after  the  lapse  of  a  certain  number  of  days,  if  he 
failed  to  file  an  affidavit  of  defence,  the  i)laintiff  being 
I'equired,  within  two  weeks  after  the  return  of  the  original 
process,  and  before  the  judgment  day,  to  file  a  copy  of  his 
cause  of  action  in  the  suit, — which  requirement  was  regarded 
as  a  condition  precedent  to  his  right  to  ask  for  such  judgment 
against  defendant,  and  to  the  latter's  duty  to  tile  an  afii- 
davit"* — it  was  held,  that,  where  the  plaintiff  was,  in  fact, 
dead  at  the  time  of  the  impetration  of  the  writ,  and  the  latter 
was  not  amended  until  after  tlie  judgment  day,  no  judgment 
(!ould  be  taken  for  want  of  an  affidavit  of  defence,  there 
being  no  one  who  could  perfoi-m.  within  the  prescribed  time, 
that  which  was  imposed  upon  a  plaintiif  as  a  condition 
precedent  to  his  right  to  take  such  judgment.*"  Upon  this, 
ground  also,  probably  rests  the  decision,  under  a  statute 
requiring  notice  of  appeal  to  be  served  on  the  appellee,  but 
designating  no  person  upon  whom  such  notice  might  be 
served  after  the  appellee's  death  and  before  the  appointment 
of  an  administrator,  that  service  upon  the  widow,  the  justice 
from  whose  judgment  the  appeal  was  taken,  the  county  clerk 
and  the  attorney  who  appeared  before  the  justice,  was  not 
legal  service,  the  administrator  being  clearly  the  only  person 
upon  whom  such  notice  could  be  served,  and  the  service  of 
it  being  a  condition  precedent  to  the  jurisdiction  of  the 
court."'  It  follows  also,  that,  where  a  statute  designed  to 
attain  a  ]iarticular  ol)ject,  prescribes  no  method  of  procedure 
for  the  purj>ose,  and  there  is  no  court  whose  forms  of  pro- 

136  State  V.  Douglass,   5   Sneed  (Pa.)     335.        Comp.     Smith      v. 

(Tenn.)  608.  Hiester,  11  W.  N.  C.  (Pa.)  853. 

1S6    Tlinmas     v.    Shoemaker,    6  '^s  ciark  v.   Snyder,  40  Him  (N. 

Watts  &  S.  (Pa.)  179  ;  Gottman  v.  Y.)    330,    Haidiu,    J.,    dissenting. 

Shoemaker,  86  Pa.  St.  31.  because  the  time  was  too  short  to 

'"   Lynch    v.    Kerns,    10  Phila.  raise    an    administrator.      Comp., 

ante,  ^  141. 


032 


WAIVKR. 


[§444 


ccdure  can  supply  tlie  deticieiicy,  the  statute  must  romuiu  a 
nullity.""  But  a  statute  which  prescribes  the  punishment  of 
an  offence  by  tine  and  imprisonment  either  in  tlie  peniten- 
tiary or  the  state  prison,  in  the  discretion  of  the  court,  is  not 
void  because,  in  many  counties  of  the  state  there  may  be  no 
l)onitcntiaries."''] 

§  4i4.  Waiver  of  Statutory  Provisions  as  to  Rights  of  Con- 
tracts.— Anotlier  maxim  wliich  sanctions  the  non-observance 
of  a  statutory  provision,  is  tliat,  cuilibet  licet  renuntiare 
juri  pro  se  intro(h;cto.  Every  one  has  a  right  to  waive, 
and  to  agree  to  waive  the  advantage  of  a  hiw  or  ruld  made 
solely  for  the  benefit  and  protection  of  the  individual,  in 
his  ])rivate  capacity  («),  and  which  may  be  dispensed  with 
Avithout  infringing  on  any  public  right  or  public  policy.'" 
Thus  a  person  may  agree  to  waive  the  benefit  of  the  Statute 
of  Limitations  {h).  The  trustees  of  a  turn]iike  road  may,  in 
<lemising  the  tolls,  waive  the  provision  of  the  Act  which 
requires  that  the  demise  shall  be  signed  by  the  sureties  of 
tlie  lessee  (c).  A  passenger  may  waive  the  benefit  of  an 
<inactment  which  entitles  him  to  carry  so  many  pounds  of 
ln<rgafrc  with  him ;  and  he  does  so,  it  may  be  added,  by 
taking  a  ticket  with  the  express  condition  that  he  shall  carry 
no  luo-o-age  (d).  The  only  person  intended  to  be  benefited 
by  such  an  enactment  is,  obviously,  the  passenger  himself  ; 
and  no  consideration   of  public  policy  is  involved  in   it  {e). 


139  Hughes'  Case,  1  Bland  (Md.) 

46. 

""  People  V.  Borges.  6  Abb.  Pr. 
(N.  Y.)  l:!2  ;  though  in  such 
counties,  it  was  added,  the  statule 
might  possibly  be  inoperative,  the 
])risoner  being  entitled  to  the  benefit 
of  all  the  various  grades  of  puiiisii- 
ment  the  act  mentions.— a  consider- 
ation winch  would  probably  induce 
,thc  court,  at  all  events,  to  suspend 
judgment  or  greatly  to  reduce  the 
term  of  iinprisoumeiit  :  Ibid. 

(a)  McAlister  v.  Kochester  (Bp.), 
5  C.  P.  D.  194,  49  L.  J  114. 
[Great  East.  Ry.  Co.  v.  Goldsmid, 
L.  R.  9  App.  Cas.  927  •.•Schuyl- 
kill, etc.,  Co.  v.  Decker,  2  Walts 
(Pa.)  ;543,  345  ;  Tombsv.  R.  R.  Co., 
18  Barb.  (N.  Y.)583.] 


'••1  The  Cal.  Civ.  Code,  8513, 
8268,  Ga.  Code,  1882,  10,  La.  Rev. 
Civ.  Code,  11,  and  Dak.  Civ.  Code, 
2066,  declare  tliat  laws  made  for 
the  preservation  of  public  order  o  r 
good  morals  cannot  be  abrogated 
l)y  agreement  ;  but  a  person  may 
\vaiv(;  or  renounce  what  the  law 
has  estal)lished  in  his  favor,  when 
lie  does  not  thereby  injure  others 
or  affect  the  public  interest  :  from 
Stimson,  Amer.  Stat.  L. 

(b)  E.  I.  Co.  V.  Paul,  7  Moo.  P. 
C.  86  ;  Lade  v.  Trill,  6  Jur.  272, 
per  Knii:;ht  Bruce,  V.  C. 

(c)  Markham  v.    Stanford,  14  C. 

B.  N.  S.  376. 

((7)  Rumsey  v.   N.  E.  R.  Co.,  14 

C.  B.  N.  S.  641  ;  32  L.  J.  244. 
(e)  Id.  per  Willes,  J. 


§  444]  WA.rvKK.  033 

A  company  antliorized  by  statute  to  levy  tolls  witliiii  a 
speciiied  inaximuin  is  not  bound  to  exact  uniform  tolls  from 
•all  persons  alike  ;  but  is  entitled,  in  the  absence  of  an 
■express  provision  requiring  equality,  to  remit  any  part  of 
tlie  tolls  to  particular  persons,  at  its  discretion  {a).  [An 
adjacent  land-owner  njay  waive  his  rights  under  an  act 
requiring  railroad  companies  to  fence.'"  A  company  in- 
vested with  the  privilege  of  appropriating  lands  may 
waive  the  right  given  by  its  charter  to  apply  to  the  court 
for  writs  of  inquiry  ad  quod  damnum,  designed  for  the  bene- 
Ht  of  the  company,  as  a  measui'c  of  precaution  to  ascertain 
in  advance  the  damages  to  be  incurred  in  the  adverse 
taking.'"  The  legal  owner  of  real  estate,  out  of  possession 
at  the  time  when  the  equitable  owner  in  possession  caused  a 
building  to  be  erected  thereon  without  the  former's  con- 
sent, may  waive  the  benefit  of  an  act  providing  that 
mechanics'  liens  shall  not  extend  to  anv  other  or  o-reater 
estate  in  the  land  than  that  of  the  person  or  persons  in 
possession  at  the  date  of  the  commencement  of  the  building 
and  directing  the  performance  of  the  work,  etc.,  and  that 
no  greater  estate  than  this  shall  be  sold  by  virtue  of  any 
execution  authorized  by  the  act.'"  A  party  may  waive  the 
right  declared  by  statute  of  assignees  of  life,  fire,  etc., 
insurance  policies  to  sue  in  their  own  names  ;  and  hence 
such  an  act  has  no  application  where  the  policy  expressly 
provides  that  it  shall  not  be  assigned  or  transferred  without 
the  consent  of  the  insurance  company,  and  such  assent  has 
not  been  given.'"  A  married  woman  may,  by  a  written 
agreement,  made  between  lier  and  her  husband,  to  separate, 
each    for  a  valuable  consideration,  relinquishing  whatever 

(a)  Huugerford  JMarket    Co.    v.  stand  unchallenged  and  a  sheriff's 

City   Steam  Boat  Co.,  3  E.   &  E.  sale  of  his  interest  in  the  land  to 

365,  30  L.  J.  25.  be  made  under  an  execution  on  the 

"'- Tombs  V.  R.  R.  Co.,  18  Barb,  judgment,    will   be    presumed    to 

(N.  Y.)  583.  have  waived  the  provision  of  such 

"»  Schuylkill,  etc.,  Co.  v.  Decker,  an  act,  and  will  not  be  allowed,  in 

3  Watts  (Pa.)  343.  an  action  of  ejectment,  to  set  up 

i«  Weaver  v.  Lutz,  102  Pa.  St.  the  invalidity  of  the  judgment  as 

593:  and  one,  who,  without  objec-  against  a  bona   fide   purchaser   at 

tion,   permits  a  judgment    to    be  the  sheriff's  sale,  who  relied  upon 

improperly   obtained    against  him  the  verity  of  the  record  :  Ibid, 
on  asci.fa.  uponsuchnmechani(;'s  "^  jsfj^f      j^j^-      ^j^j     Soc'y    v. 

clauu,    permits    the  judgment    to  Lupoid,  101  Pa.    St.  111. 


C34  WAivEK.  [§  445^ 

marital  rights  either  iniglit  have  in  the  estate  of  the  other, 
folk)\ved  bj  actual  separation,  waive  her  statutory  right  to 
the  $300  exemption  out  of  his  estate  upon  his  decease."' 
A  party  may  waive  the  benefit  of  exemption  laws,"''  or 
that  of  a  provision,  in  an  act  giving  a  mortgagee  a  rem- 
edy b}^  scire  facias  upon  tlie  mortgage,  which  postpones  his 
right  to  issue  the  writ  until  after  the  expiration  of  twelve 
months  next  ensuing  the  last  day  whereon  the  mortgage- 
money  ought  to  have  been  paid,  or  other  condition  per- 
foi-mcd.'"  Indeed,  even  where  a  contract  is  prohibited  by 
statute,  the  principle  that  courts  will  not  enforce  contracts 
made  in  the  face  of  such  prohibition  or  permit  the  recovery 
of  money  paid  in  pursuance  of  them,  is  inapplicable  where 
the  prohibition  was  intended  for  the  mere  protection  of  one- 
of  the  parties  against  a  supposed  undue  advantage  possessed 
by  the  other."'] 

§  445.  Waiver,  etc.,  as  to  Procedure  and  Practice  in  Courts. — 
The  regulations  concerning  the  procedure  and  practice  of 
Civil  Courts  may  in  the  same  way,  when  not  goiug  to  the 
jurisdiction,'^"  be. waived  by  those  for  whose  protection  they 
were  intended.  Thus,  the  provisions  of  the  Act  of  4  Anne,, 
c.  16,  which  required  that  a  plea  in  abatement  should  be 
verified  by  aflidavit,  might  be  waived  by  the  plaintiff  {a),. 
[The  statutory  limitation  as  to  the  time  within  which  a 
defendant  is  allowed  to  file  his  affidavit  of  defence,  and  at 

"^  Speidel's  App.,    107  Pa.    St.  when   they  mean  no    more    than 

18.  tliat    some    party   has   a   right  to 

''*''  McKinney  v.  Reader,  6  Watts  avoid  them  .  .  .  'Legislators  some- 

(Pa.)   34  ;   Case   v.    Dunmore,    23  times    use    language    witli    equal 

Pa.  St.  94.     But  see  Firmstone  v.  waul  of  exact  accuracy;  and  when 

Mack,  4!)  Id.  387,  post,  §  447.  they  say  that  some  act  or  <;ontract 

'•"*  lluliiig   V.    Drexell,   7   Watts  shall  not  be  of  any  force  or  effect, 

(Pa.)  126.  mean  perhaps  no  more  than  this, 

'''■*  Scotten  V.  State,  54  Ind.  52.  that  at  the  option    of    tiiose    for- 

See,  also,  Deming  v.  State,  23  Id.  whose   benefit   the   provision    was 

41(5.    See,  also,  Dupre  V.  McCright,  made,  it    sliall    be    voidable    and 

y  La.  An.  146.     A  provision  that  have  no  force  or  effect  as  against 

may  be   waived  by  the  party  for  their    interests," — cit.  :    Green    v. 

wh().se  protection  it  is  intended,  can-  Kemp,    13   Mass.    515;   Terrill  v, 

not  be  invoked  by  anyone  else  to  Auchaner,  14  Ohio  St.  80  ;  State  v. 

invalidate  the  contract  :  Bcnnet  v.  Kiclmioud,  26  N.  II.  232. 

Maltini^ly,  110  Ind.  197;  Beecher  '^o  See  Weidenhamer  v.  Bertie, 

v.  Moiling  Mill  Co.,  45  Mich.  103,  103  Pa.  St.  448. 

wlicre   it"  is  said  :  "  Courts  often  (a)   Graham   v.    Ingleby,    1  Ex.. 

speak  of  acts  and  contracts  as  void  65i. 


§  445]  WAIVER.  635 

tlie  expiration  of  which,  in  def;inlt  of  such  affidavit,  the 
plaintiff  is  entitled  to  judgment,  may  be  waived  by  the  plaint- 
iff ;  so  that,  if  he  does  not  ask  for  judgment  until  some  time 
after  the  expiration  of  that  period,  an  affidavit  filed  since 
the  sacne,  if  before,  actual  motion  for  judgment,  is  in  time.'" 
And  a  plaintiff  may  waive  his  right  to  question  the  sufficiency 
of  an  affidavit  of  defence  filed,  by  obtaining  a  rule  upon  the 
defendant  to  plead  and  taking  other  steps  in  the  cause  i"''  or 
lie  may  waive  altogether  his  right  of  requiring  the  defendant 
to  file  an  affidavit  of  defence,  or  of  asking  for  judgment  for 
want  of  it,  by  taking  out  a  rule  to  arbitrate.'"  Similarly^ 
the  party  interested  may  waive  the  legal  formalities  in  the 
execution  of  a  writ  for  the  sale  of  real  estate,"*  as  well  as  the 
provisions  of  a  statute  requiring  the  sale  of  land  upon 
execution  to  be  made  in  separate  lots  or  parcels,  instead  of 
as  a  whole.''']  Under  the  13  &  14  Yict.  c.  61,  s.  14,  which 
gave  an  appeal  from  a  County  Court,  provided  the  appellant, 
within  ten  days,  gave  notice  of  appeal  and  security  for  costs  ; 
and  after  directing  that  the  appeal  should  be  in  the  form  of 
a  case,  enacted  that  no  judgment  of  a  County  Court  Judge 
should  be  removed  into  any  other  court,  except  in  the  manner 
and  under  the  provisions  above  mentioned  ;  it  was  held  that 
the  want  of  due  notice  and  security  might  be  waived.  The 
provision  was  intended  for  the  benefit  of  the  respondent,  and 
was  not  a  matter  of  public  concern  (a).  [So,  a  defect  in  a 
recognizance  for  an  appeal  from  an  award  of  arbitrators  may 
be    waived."']     So,  a   defendant,  even    in  a  criminal    case 

'5'  Slocum  V.   Slocum,  8  Watts  '^"  Cunningham  v.    Cassidy,  17 

(Pa.)  307  ;   Gillespie  v.  Smith,  13  N.  Y.  276.     See  ante,  §  314. 

Pa.    St.  65  ;  just  as,  under  an  act  (a)    Park     Gate      Iron     Co.    v. 

allowing  ten  days  for  the  filing  of  Coates,  L.   R.   o  C.   P.  634.     See. 

an  answer,    it  was  held  that  the  also,    R.    v.  Long,  1  Q.    B.    740 ; 

latter  might  be  filed  at  any  time  'lyerman  v.  Smith,  2  E.  &  ]>.  7.;9, 

thereafter,    until   some    action   of  25  L.   J.  259  ;  Fieeman  v.  Read,  4 

the  court  or  of  the   adverse  party  B.  &  S.   174;   Palmer  v.  ]\Ietrop. 

concluded    the    right  :    Lewis    v.  R.  Co.,  31   L.    J.  Q.   B.    259  ;  Re 

Labauve,  13  La.  An.  382.  Regent  U.  S.  Stores,  L.  R.  8  Ch. 

1^-^  O'Neal  V.  Rupp,  22  Pa.  St.  75.  [S.  P.,  as  to  notice,  Goss  v. 
395.  See,  also,  Morrison  v.  Under-  Davis,  21  Ala.  479  ;  Hill  v.  Bow- 
wood,  5  Cush.  (Mass.)  52 :  Sey-  den,  3  La.  An.  258.  But  see 
raour  V.  Judd,  3  N.  Y.  464.  contra,  I?e  Gold  Str.,  2  Dak.  39.] 

153  Lusk  V.  Garrett,  6  Watts  &  i^«  Walter  v.  Bechlol,  5  Rawle 

S.  (Pa.)  89.  (Pa.)  228  ;   Clarke  v.  McAnulty,  3 

15'*  St.  Bartholomew's  Church  v.  Serg.  &  R.  (Pa.)  364  ;  Weidner  v. 

Wood,  80  Pa.  St.  219.  Matthews,  11  Pa.  St.  336. 


■G3C  WAivLK.  [^  446 

before  a  justice  of  the  peace,  may  waiv^e  any  in-e<rularity' 
ill  the  suininoiis,  or  dispense  witli  the  snninions  alto- 
gether ;  and  he  does  so,  not,  indeetl,  by  appeaiin<;  merely 
(a),  but  b}'  ajipearing  and  enteriii<>-  on  the  case  on  its 
merits ;  for  he  would  not  1)0  allowed  to  take  his  chance  of 
})rcvailing  on  the  merits,  and  at  the  same  time  to  reserve  Ins 
objections  to  a  preliminary  irregularity  (h).  So,  where  a 
statute  requires  justices  to  make  known  to  a  party  his  right 
to  ajjpeal,  and  the  steps  necessary  to  carry  out  this  right, 
such  as  giving  notice  of  appeal  and  entering  into  recogni- 
zances ;  the  party  may  waive  this  provision,  and  does  so  by 
declaring  that  lie  does  not  intend  to  appeal  (c). 

§  446.  No  Waiver  as  against  Public  Policy  or  Rights  of  Others. 
— But  when  public  policy  requires  the  observance  of  the 
provision,  it  cannot  be  waived  by  an  individual.  Privatorum 
conventio  juri  publico  non  derogat  {<l).  Private  compacts 
are  not  permitted  either  to  render  that  sufficient,  between 
themselves,  which  the  law  declares  essentially  insufhcient  ;  or 
to  impair  the  integrity  of  a  rule  necessary  for  the  common 
welfare;  such,  for  instance,  as  the  enactment  which  requires 
the  attestation  of  wills  (e).  Thus,  the  invalidity  of  the  service 
of  a  writ  on  a  Sunday  cannot  be  waived  ;  for  it  is  a  matter 
of  public  policy  that  no  such  proceeding  should  take  place  on 
Sunday  {/).  It  is  said  to  be  a  general  understanding  in  the 
profession  that  a  prisoner  can  consent  to  nothing;  at  least  in 
the  course  of  his  trial  (^).  In  criminal  matters,  a  person 
cannot  waive  what  the  law  requires  (A).  Where,  upon  a  trial 
for  felony,  the  jury  was  discharged,  and,  at  the  new  trial, 
some  of  the  witnesses,  after  being  sworn,  had  their  evidence 

(a)  R.  V.  Carnurvon,  5  Nev.  &  Scotten  v.  State,  51  Ind.  52  ;  and 
M.  364.  auto,  i;  444.] 

(b)  U.  V.  Barrett,  1  Salk.  383  ;  (e)  Per  Wilson,  J.,  in  Haberj;- 
R.  V.  .Johnson,  1  Stra.  261  ;  R.  v.  liam  v.  Vincent,  2  Ves.  J.  227. 
Aiken,  3  Burr.  1785  ;  R.  v.  Stone,  See  New  York  Civ.  Code,  Art. 
1  East,  039  ;  R.  v    Berry,  28  L.  J.  1968,  n.  2. 

M.  C.  86:  R.  v.   Fletcher,  L.  R.  1  (/)   Taylor   v.   Phillips.  3  East, 

C.  C.  320  ;  R.   V.   Smith,   Id.  110  ;  155. 

R.   V.    VViddop,  L.  R.   2  C.    C.  3  ;  ((/)  Per  cur.   in   R.  v.   Bertrand, 

Bolton  V.  Bollon.  2  Ch.  D.  217.  L.  K.  1  P.  C.  520 

{0)  R.  V.   Yorkshire,  3  M.  &  S.  (h)  Per  M.    Smitli,  J.,  in  Park 

493.  Gate  Iron   Lo.  v.  Coates.  L.   R.  5 

(d)  Dig.  50,   17,  45.     [See,  also,  C.  P.  639. 


§  447] 


WAIVEK. 


63r 


read  ovci-  to  tliciii  by  tlio  jutli^e  from  liis  notes,  and  the 
counsel  for  the  Ci'own  and  the  i)risoner  had  afterwards  liberty 
to  examine  and  cross-examine  them  ;  it  was  hold  that  tliis 
course  of  ])roceeding  vitiated  the  trial^  and  that  \\\e  consent 
or  acquiescence  of  the  prisoner  did  not  cure  the  irregular- 
ity {a).  The  object  of  a  criminal  trial,  it  was  observed,  was 
the  administration  of  justice  in  a  course  as  free  from  doubt 
or  chance  of  miscarriage  as  human  administration  of  it  can 
be  ;  not  the  interests  of  either  party.'"  [Nor,  of  course,  can 
a  party  consent  to  the  violation  of  a  statute  not  made  for 
his  benefit,  but  for  the  security  of  another  ;  as,  where  an  act 
forbids  a  warehouseman  to  sell,  incumber,  ship  or  transfer 
any  goods,  etc.,  for  which  he  shall  have  given  a  receipt,, 
without  the  return  of  the  receipt, — an  act  intended  to  protect 
advances  made  on  the  faith  of  the  fact  that  the  goods 
desci'ibed  in  the  receipt,  which  the  act  makes  negotiable,  are 
actually  in  store,  and  not  for  the  jirotection  of  the  depositor,. 
— the  consent  of  the  latter  to  the  shipping  of  the  goods  with- 
out a  return  of  the  receipt  would  not  relieve  the  warehouse- 
man."'] 

§  447.  No  Waiver  of  Want  of  Jurisdiction. — Consent  cannot 
give  jurisdiction  (h) ;  and  therefore  any  statutory  provision, 
which  goes  to  the  jurisdiction  does  not  admit  of  waiver.'^®' 


(n)  R.  V.  Bortrand,  ubi  sup.  ; 
nnd  see  R.  v.  Bloxham.  G  Q.  B. 
528  ;  prr  Polloek,  C.  K,  and  Alder- 
son.  IJ. ,  in  Gialiain  v.  Inoleb}',  1 
Ex.  651.  Comp.  R.  v.  Tlionihill, 
8  C.  &  P.  575.  See  E.\p.  Best,  18 
Ch.  D.  488,  51  L.  J.  Cli.  293. 

'*■"  A  law  requiriiiii'  the  cheeking 
of  trains  in  [lassing  a  road  crossing 
(lield  to  apply  to  street  crossings 
in  a  city)  would  not  he  waived  by 
tlie  matter  of  opening  streets  and 
the  failure  of  a  city  to  exercise 
the  power  of  regulating  the 
running  of  trains  over  its  streets, 
if  conferred  upon  it  b}'  the  Legis- 
lature :  Centr.  R.  R.  Co.  v.  Rus- 
sell. 75  Ga.  810. 

'»»  Bucher  v.  Com'th,  103  Pa.  St. 
528,  533. 

(b)  Lawrence  v.  Wilcock,  11  "A. 
&  E.    941  ;  Lismore  v.  Beadle.  1 


Dowl.  N.  S.  5GG  ;  Exp.  Robertson,. 
20  Eq.  733  :  Jackson  v.  Beaumont, 
11  Ex.  303,  24  L.  J.  301.  [But 
where  a  court,  e.  g.,  in  Pennsyl- 
vania, the  court  of  Quarter  Ses- 
sions, has  general  jurisdiction  over 
awarding  damages,  altbougli  in  a 
particular  proceeding  Ihaf  juris- 
diction is  vested  in  another  court, 
j'et  a  city  having  invoked  Ihe 
general  juri.<idiclion  of  the  Q.  S. 
for  those  ]hu  pose.s,  will  not,  after 
the  proceedings  have  taken  their 
course,  without  objection  and 
been  perfected,  be  allowed  to- 
raise  the  question  of  jurisdiction, 
in  order  to  avoid  the  payment  of 
the  damages  assessed  for  the  laud 
taken  :  lie  Spring  Str.,  112  Pa.  St.. 
258.] 

'*»  See  Cooley,  C.  L.,  493,  506. 


G3S  e.stoppj<:l.  [§  448 

It  was  held  that  the  provision  of  the  20  &  21  Vict.  c.  43, 
which  requires  the  appelhuit  from  a  decision  of  justices  to 
transmit  the  ease  in  three  days  to  the  court  of  appeal,  could 
not  he  waived  by  the  respondent,  on  the  ground  either  that 
it  went  to  the  jurisdiction,  or  that  it  related  to  a  criminal 
case,  or  that  the  justices  had  an  interest  in  the  observance  of 
the  rule  (a).  [Where  an  act  extending  the  jurisdiction  of 
justices  of  the  peace  to  attachment  executions,  provided  that 
"  the  wages  of  any  laborer,  or  the  salary  of  any  person 
in  public  or  private  employment,  shall  not  be  liable  to 
attachment  in  the  hands  of  the  employer,"  it  was  held 
that  the  defect  was  one  of  jurisdiction  and  could  not  be 
waived.'""] 

§  448.  Estoppel  from  Claiming  Benefit  of  Statute. — It  may  be 
added  here,  that  a  person  is  sometimes  estopped  by  his  own 
conduct,  from  availing  himself  of  legislative  provisions 
intended  for  his  benefit.  For  instance,  a  j^risoner  for  debt, 
representing  a  person  to  be  an  attorney,  to  attest  a  warrant 
of  attorney,  who  did  not  belong  to  that  profession,  could  not 
afterwards  be  allowed  to  impeach  the  warrant  on  the  ground 
of  inadequate  attestation  {b) ;  and  the  grantee  of  an  annuity, 
on  whom  the  duty  is  cast  of  enrolling  tlie  deed  of  grant, 
would  be  estopped  from  taking  any  advantage  from  his 
neglect  to  enroll  it  (c).  [So,  although  a  borrower  cannot,  by 
a  contemporaneous  prospective  agreement  waive  the  pro- 
visions of  the  usury  laws,'"  yet  the  right  to  set  up  the  defence 
of  usury  may  be  lost  by  him  who  would  be  entitled  to  set  it 
up ;  as,  where  his  agent  represented  to  the  lender  buying  a 
note  and  mortgage  that  the  same  was  an  honest  debt  and 
would  be  paid;'"'^  or  where  the  borrower,  being  the  mortgagor, 

(a)  MoriTiin  v.  Ethvards,  5  H.  &  387.     See  autc.  i^  444. 

N.  415  ;  Peacock  v.  K..  4  C.  B.  N.  (b)  Joyce  v.  Booth,  1  B.  &  P.  97; 

S.    2'M,   21    L.    J.    229.       Comp.  Co.x  v.    Cannon,   4    Bing.    N.  C. 

Peters  V.   Sheehan,    16  M.   &  W.  453. 

213  ;  Great  jS.  li.  Co.   v.,  Ivutt,  2  (<•)  Moltoii  v.  Cararoux,  4  Ex.  17; 

CJ.  B.  D.  284  ;  li.  v.  Huglies,  4  Q.  Turner  v.  Browne,  3  C.  B.  157. 

B.    I).   615.      See   the  remarks  in  '"  Bcsler  v.  Rheeni,  72  Pa.  St. 

]*ark  Gale  Iron   Co.  v.  Coates,  L.  54;   Mabee   v.     Crozier,    22    lluu 

]{   5  C.  P.  634,  (iubit.  Keafini;,  .J.  ;  (N.  Y.)  264. 

Bennett  v.  Atkins,  4  C.  P.  D.  80.  '•*-  Sage  v.  McLaughlin,  34  Wis. 

'«'  Firmstone  v.  Muck,  49  Pa.  St.  550. 


§  448]  ESTOPPEL. 


639 


allows  the  property  to  be  sold  under  a  foreclosure,  without 
attempting  to  avoid  the  mortgage.""  In  such  cases,  the 
borrower  would  be  estopped  from  asserting  his  rights  under 
the  usury  laws,  and  ailecting  innocent  purchasers  with  the 
consequences  thereof."*] 

'«3  Elliott  V.   Wood,    53   Barb.         '"  See,  also,  Weaver  v.  Lutz,  102 
(N.  Y.)  285.  Pa.  St.  593,  ante,  §  444. 


640  ILLEGAL  CONTKACTS.  [§  449 


CHAPTER  XVI. 

Effect  of  Statute  upon   Contracts  made  in   Contraven- 
tion THEREOF.     Public  and  Private  Implied  Remedies. 

§  449.  Distinction  between  Void  and  Illegal  Contracts. 

5;  450.   Contracts  Prohibited  under  Penalty. 

^  451.   Contracts  Founded  on  Illegal  Con.sideration. 

§  452.   Contracts  Connected  with,  I'romoting,  Involving  or  Growing  out 
of  Illeg'al  Acts.  ' 

§  454.  Sales  for  Illegal  Purposes. 

§  455.  Forms,  etc.,  of  Contracts  Prescribed  by  Statute. 

§  456.  Effect  on  Contracts  of  Absence  of  Statutory  Personal  Qualifica- 
tions. 

§  457.  When  Contract  contrary  to  Statute  Upheld.     Revenue  Laws. 

§  458.  Statute  Operating  on  Particular  Party  or  Declaring  Particular 
Result. 

§  459.  Statute  made  for  Protection  of  One  Party.      Remoteness. 

^  460.  Partial  Illegality  of  Contract. 

§  461.   Effect  of  Statute  Rendering  Performance  of  Contract  Illegal. 

§  463.   Statute  Implies  iVIeau§  of  Enforcement. 

i^  404.  Implied   Remedies  Where  an  Act  Prohibits  or  Commands  Some- 
thing Public. 

§  465.  Statute  Creating  Obligation  and  giving  Remedy  in  Same  Section. 

§  406.  Statute  Creating  Obligation  to  Pay  Mouc-y. 

§  467.  Statute  Creating  Public  Duly  and  giving  Remedy,  in  Different 
Sections. 

§  408.   Same  Rule  as  to  Private  Duties. 

§  469.  AVhere  Tliird  Parties  Interested  in  Duties  or  Prohibitions. 

§  470.  Non-performance  of  New  Duty,  etc.     Penalty  Recoverable  by 
xVggrieved  Party. 

§  471.  Right  of  Action  Limited  to  those  Directly  withiu  Gist  of  Enact- 
ment. 

§  472.  Former  Latitude  in  this  Respect.     Later  Rule. 

%  473.  Special  Injury  by  Breach  of  Public  Duty  Necessary  for  Action. 

Remoteness. 
§  474.  Statutes  Foreign  to  Individual  Interests  give  no  Trivate  Action. 

§  449.  Distinction  between  Void  and  Illegal  Contracts. — A  Con- 
tract is  not  illegal  merely  because  it  is  void  or  not  enforce- 
able. An  Act,  for  instance,  which  limits  the  contracting  power 


§  449]  ILLEGAL  CONTEACrS.  641 

of  a  company  to  certain  contracts  only,  does  not   thereby 
render  illegal,  though  it  leaves  void,  all  contracts  which  do 
not   fall  intra  vires  («).     An  Act  which  provided    that   a 
professional  man  should  not  recover  on  a  contract,  unless  he 
was  duly  qualified,  would  make  the  contract  of  an  unquali- 
fied person  similarly  void,  but  not  illegal  {h).     But  when  a: 
statute  prohibits  an  act,  any  contract  made  respecting  it  is^ 
illegal    as   well  as  void  (c).      What   has  been    done   m   con- 
travention of  an  Act  of  Parliament,  it  has  been  said,  cannot 
be  made  the  subject  of  an  action  (d).     Thus,  as  the  Metro- 
politan   Building   Act   prohibits    the    use   of    combustible 
materials  for  building  walls  in   the   metropolis,  the  builder 
of  any  such  walls  could  not  maintain  an  action  foi-  the  price 
of  erecting  them   (<?).     A  waterman   being  pi-ohibited    by 
statute  from  taking  an  apprentice,  unless  he  was  the  occu- 
pier of  a  tenement  wherein  to  lodge  him  ;  it  was  held   that 
no  settlement  was  gained  by  service  under  an  indenture  of 
apprenticeship  made  contrary  to  this  provision    (/).     [So, 
where  an  act  prohibits  the  employment  of  a  certain  class  of 
minors  in  manufacturing  establishments,  no  right  of  action 
accrues  for  wages  earned   by  a  minor  falling  within  that 
category  and   prohibition  ;'    for  no  rights  can  spring  from 
a    void    and     prohibited     contract.'       A     federal    statute 
declaring  all  assignment  of  mail  contracts  with  the   United 
States  null  and  void,  a  partial  assignment  of  such  a  contract 
will  not  support  a  promise   to  pay  for  the  interest  thus 
attempted  to  be  assigned/     So,  agreements  to  sell  rights  to 
a  future   succession   for  a  particular   consideration,   bein^ 
prohibited,  are  held  void  in  Louisiana."     Again,  where  an 

(a)  See  ex.  gr.  Ashbury  R.   Co.  (e)  Stevens  v.  Gourley,  7  C    B 
V.  Riche,  L.  R.  7  H.  L.  G53.  N.  S.  99,  sup.  §  481 

(b)  Ex.  gr.,  55  Geo.  3,  c.  194  ;  21  (/)  10    Geo.'  2,    c.    31  ;    R.    v 
&  22  Vict  c.  90  ;  per  Willes,  J.,  in  Gruvesend,  3  B.  &  Ad.  240.     [Corn- 
Turner  V.   Reynell,  14  C.  B.  N.  S.  paie  Readiniz:  Overseers  v   Cumra 
328,  32  L.  J.  164  ;  Ilelps  v.   Glen-  Overseers,  SBinn.  (Pa.)'81  1 
ister,  8  B.  &  C.   553  ;  Holgate  v.  '  Birkctt  v.  Chatterton    13  R  I 
Slight,  2  L.  M.  &  P.  662.  299. 

{c)  Bartlett  v.  Vinor,  Carth.  252  ;  «  Glidden  v.  Strupler,  52  Pa    St 

Redpath  v.  Alleu,  L.  R.   4  P.  C.  400,  406. 

511.  3  Nix  V.  Bell,  66  Ga.  664. 

(d)  Per  Lord  Ellenborough,   in  *  Reed  v.  Crocker,  12  La     An 

Langton  v.   Hughes,    1   M.    &   S.  436.     The    La.    Rev.    Civ.    Code! 

593.  1875,  12,  declares  that  vfc-hatever  is; 
41 


G42  ILLKGAL    CONTRACTS.  [^  •i-'iO 

:u't,  iiiiposccl  ;i  penalty  on  any  of  enumerated  series  of  <^ani 
\UiX  operations,  and  declai-ed  every  contract,  note,  bill,  etc., 
given  or  entered  into  for  security  or  satisfaction  of  a  debt 
arisini,^  fro>in  such  oj)erations  "  utterly  void  and  (jf  none 
"effect,"  it  was  held  that  a  note  given  for  a  gaining  consid- 
leration  was  void  even  in  the  hands  of  an  innocent  liolder 
for  value.'' I 

§  450.  Contracts  Prohibited  Under  Penalty. — When  a  penalty 
is  imposed  for  doing  or  omitting  an  act,  the  act  or  omission 
is  thereby'  prohibited  and  made  unlawful  ;"  for.  a  statute 
would  not  inflict  a  penalty  on  what  was  lawful  (a).  Conse- 
quently, when  the  thing  in  respect  of  which  tlie  penalty  is 
imposed  is  a  contract,  it  is  illegal  and  void.  In  the  case 
above  cited,^the  Act  had  declared  that  it  should  not  be  law- 
ful to  take  the  apprentice,  and  imposed  a  penalty  for  doing 
so  {b),  and  in  another,  where  service  under  an  indenture  of 
ap])renticeship  as  a  sweep  was  similarly  treated,  the  statute 
had  nut  only  declared  the  a])prenticoship  "  void,"  but  imposed 
a  jienalty  on  the  master  (c).  [So,  where  a  statute,  besides 
declaring  the  transfer  of  a  government  contract  void, 
punishes  the  same  with  annulment  of  the  contract,  no  action 
can  be  maintained  upon  sucii  transfer.*]  The  joint  Stock 
Companies  Act,  7  &  8  Yict.  c.  110,  s.  24-,  in  enacting  that 
every  promoter  of  a  company  concerned  in  making  contracts 
on  its  behalf  before  its  provisional  registration,  should  be 
subject  to  a  penalty  of  25Z.,  inipliedly  rendered  every  such 
contract     illegal    and    therefore    void  {d).       [The    National 

doue  ill  contnivention  of  a  proliihi-  v.    Bliss,    7    Ind.    77  ;    also   cases 

lory    law    is    void,    although    the  infra. 

nullity  be  not   formally  declared:  (r/)  P^;- Lord  Holt  in  Barlletl  v. 

Stimson,    Anier.   Slat.    L.    p.    143,  Vi nor,  ubi  sup.  ;?;e/' Lord  Hatherley 

i?  10-to.  in  h'e  Cork,  etc.,  K.   Co.,  L.  R.  4 

■'  Harper  v.   Young,  112  Pa.   8t.  Ch.  748. 

4U);  Unger   v.    Boas,   13  LI.   (iOO.  •>  K.    v.  Gravesend,  3  B.   &  Ad. 

But  it  said.  Ibid.,  at  p.    603,  that  240,  ante,  §449. 

the  indorsee  of  such  a  note   may  (b)  10    Geo.    2,    c.    31  ;     R.    v. 

•sue  the    indorser  on  his    indorse-  Gravesend,  ul)i  sup. 

inent.  (c)  2S  Geo.    3,  c.  48  K.    v.   Hips- 

"*  See,  among  other  cases.  Chirk  -well,  8  B.  &  C.  466. 

V.  Ins.  Co.,    i' Story,  10!)  ;  Hallcit  **  Turnbull     v.      Farnsworth,    1 

V.  Novion,  14  .Johns.  (N*.    Y.)213;  Wash.  4  14. 

Bacon  V.  Lee,  4Ljwa,  490;  Mitchell  {(I)  Bull  v.  Chapman,  8  Ex.  444  ; 

V.  Sraitli,  1  Binn.  (Pa.)  110  ;  Lewis  and  see  Abbot  v.  Rogers,  16  C.  B. 

V.  Welch,  14  N.    H.   294  ;  Skeltou  277. 


§  450]  ILLEGAL  CONTRACTS.  643 

Currency  Act  of  3  June,  1864,  wliicli  permits  national  banks 
to  "  purchase,  hold    and  convey"  real  estate  in  certain  pre- 
scribed cases,  among  whicli  it  enumerates  "such  as  shall  be 
mortgaged  to  it  in  good  faitli  by  way  of  security  for  debts 
previously    contracted,"  having  provided  that  "  such    asso- 
ciation  shall  not  purchase  or  hold  real  estate  in  anj^  other 
case,"  etc.,  punishes  a  violation  of  any  provisions  of  the  act 
by   inflicting   personal    liability    upon    the"  directors,    and, 
sub  modo,  forfeiture  of  the  corporate  franchise.     It  was  held 
that  a  mortgage  taken  by  a  national  bank  to  secure  future 
discounts  was  absolutely  void,  and  that  the  assignee  for  the 
benefit  of  creditors  of  the  mortgagor  might  resist  its  enforce- 
ment upon  that  ground.'     So,  a  contract  between  a  citizen 
of  the  United  States   and    an    alien,  whereby   the    former 
undertook  to  purchase  vessels  and  cargoes  in  his  own  name, 
for  the  latter,  to  equip,  register  and  navigate  them  in  the 
name  of  the  former,  for  the  use  of  the  latter,  and  in  like 
manner  to  import  the  return  cargo,  in  fraud  of  the  registry 
and  revenue  acts  of  the  United  States,"  which  prohibited  such 
transactions  under  penalty  of  forfeiture  of  the  vessel,  with 
her  tackle,  apparel  and  furniture,  was  held  to  afford  no  basis 
for  an  action  in  American  courts."]     The  higliway  Act,  5  & 
6  Wm.  4,  c.  50,  s.  46,  in  imposing  a  penalty  of  ten  pounds 
on  a  road  surveyor  who  had  any  share  in  a  contract  for  sup- 
plying work  or   materials,  or   horse  labor,    for  any  of  his 
highways,  without  the   written  license  of  two   justices,  was 
equally  fatal  to  his  recovering  any  payment  for  such  supplies 
or  services  (a).     [So,  where  an  act  punishes  "  any  officer  of 
any  county,     .     .     city,  or  town,      .     .     who  shall  contract 
directly  or  indirectly,  or  become  in  any  way  interested  in 
any  contract,  for  the  purchase  of  any  draft  or  order  on  the 
treasury,"  an  agreement  between  a  sheriff,  at  the  time  ex 
offiicio  collector  of  his  county,  and  another,  whereby  each 
was  to  furnish  equal  amounts  of  money  to  be  invested  in 
county  scrip,  the  profits  to  be  divided,  was  held  illegal  and 

9  Fowler  v.  Scully,  72  Pa.   St.  "   Maybin    v.    Coulon,   4    Dall. 

456.  (Pa.)  298  ;  4  Yeates.  24. 

>»  See  Act  31  Dec.  1792,  2  U.  S.  (a)  Barton  v.  Pigott,  L.  R.  10  Q. 

Laws  131.  B.  86. 


044  ILLEGAL    CONTKACTS.  [§  45 i' 

void.''''  So,  under  the  Pennsylvania  statute  of  11  xYpril,  1795^ 
a  contract  for  the  })nrehase  and  sale  of  lands  under  the 
Connecticut  title,  and  a  bond  given  for  the  purchase-money 
thereof,  were  iield  illegal  and  void,  although  the  statute 
merely  inllicted  a  penalty  on  the  offender  against  its 
prohibition.'"]  The  50th  section  of  the  Merchant  Shipping- 
Act  of  1854,  which  enacts  that  the  certificate  of  a  ship's 
registry  shall  be  used  only  for  the  navigation  of  the  ship,  and 
imposes  a  penalty  on  any  person  in  possession  of  it,  who 
I'cfuses  to  give  it  up  to  the  person  entitled  to  its  custody  for 
the  purposes  of  navigation,  impliedly  prohibits  its  use  for 
au}'^  other  purpose  ;  rendering  a  pledge  of  it  illegal  and  void,, 
and  giving  no  right  to  detain  it  even  against  the  pledgor,  if 
the  right  of  possession  and  property  is  vested  in  him  [a). 

^  451.  Contracts  Founded  on  Illegal  Consideration. — [It  ha& 
been  so  often  decided  as  to  have  become  a  sort  of  legal 
maxim,  that,  where  any  matter  or  thing  is  made  illegal  by 
statute,  whether  l)y  express  prohibition  or  l)y  being  made 
subject  to  a  penalty,  a  contract  founded  directly  upon  such 
matter  or  thing  as  its  sujiporting  consideration,  is  itself  ren- 
dered illegal  and  void,"*  as,  where  ihe  consideration  was 
brandy  manufactured  and  sold  in  violation  of  tiie  revenue 
laws,'^  or  smuggled  goods  ;'"  or  work  done  with  a  threshing 
machine,  the  truckles  and  rod-boxes  of  which,  at  the  time  of 
the  woj'k,  were  not  covered  or  inclosed  as  required  by  a 
statute  which  made  the  omission  of  these  precautions  for  the 
safety  of  persons  running  such  machines  punishable  as  a. 
misdemeanor."] 


'^   Rciul  V.  Smitli,  60  Tex.  379.  87  ;  Bayley  v.  Taber,  5  Mas.s.  286 ; 

'•'   Mitchfll    V.    Smith,    4    Dull.  AVlieolcV   v.    Ru.sst'll,  17   Id.    258  ; 

(Pa.)  209.  Funar  v.  Barton,  5  Id.  f5!»5  ;  Stan- 

(n)  Wiley  v.  Crawford,  1   E.   B.  ley  v.  Nel.sou,  28  Ala.  514  ;  Milton 

&  E.  253,  29L.  J.  244,  30  Id.  ;!19.  v.    Iladen,    32    Id.    30;    P.iddis  v. 

'■*  See  1  Pars.,  Coiilr.,  pp.   *45G-  James,  G  Biiiti.  (Pa.)  321  ;    Seiden- 

459.  bender   v.    Charles,  4   Serg.  &  II. 

'5   Crcckmore    v.     Chitwood,    7  (Pa.)  151  ;    EUsworlh   v.  Milchell, 

Bush  (Ky.)  317.  31  Me.  247  ;   Elkins  v.  Parkhiirst, 

'8  Condon  v.   Walker,   1  Yeates  17   Vt.   105;  Spalding  v.   Preston, 

(Pa.)  483.  21  Id.  9  ;   Koby  v.  West,  4  N.   IL 

'^  lugersoU  v.  Randall,  14  Minn.  2^5  ;   Carlton    v.    Whilclier,   5  Id. 

400.    Se(!,  also,  the  following  cases:  196  ;  liracket  v.  Iloyt,  29  Id.  261  ; 

Bell  V.  Quin.  2  Sandf.  (N.  Y.)  146;  Cobiirn  v.  Odell,  30*Id.  5-10  ;  Solo- 

Noiirse  v.  Pope,   13  Allen  (Mass.)  mon   v.    Dreschler,  4  Minn.    278  • 


I  4ri2]  ILLEGAL  CONTRACTS.  645 

§  452.  Contracts  Connected  v/ith.  Promoting,  Involving,  or 
Growing  out  of  Illegal  Acts. — Further,  ;uiy  contract  connected 
with  or  growing  out  of  an  act  which  is  illegal  (not  merely 
void),  is  also  invalid.  Thus,  a  contract  to  dance  at  a  theatre 
not  duly  licensed  could  not  be  enforced  by  action  {a).  [A 
check  given  by  defendant  to  a  country  agricultural  society 
in  payment  of  the  entrance  fee  for  his  horse,  to  compete  for 
premiums  offered  by  the  society  in  trials  of  speed,  horse- 
racing  being  made  penal  by  statute,  cannot  be  made  the  basis 
of  a  recovery  against  him  ;^*  nor  can  money  loaned  in 
"poker  chips,"  and  used  at  a  prohibited  game  of  chance,  be 
recovered  back/"]  It  being  unlawful  for  any  election 
agent,  except  the  expense  agent,  to  make  any  payments  on 
behalf  of  a  candidate,  even  for  current  expenses,  an  agent 
who  made  any  such  payments  could  not,  for  this  reason, 
recover  the  amount  f.rom  his  principal  {b).  [So,  contracts 
whose  tendency  is  to  promote,  or  the  performance  of  which 
involves,  the  doing  of  acts  that  are  prohibited  or  made 
penal  by  statute,  are  illegal  and  void,  though  the  statute  be 
silent  as  to  their  etfect/"  Such  is  a  contract  to  ship  goods 
from  one  part  of  the  United  States  to  another  in  a  foreign 
bottom.^'  And  so,  too,  an  agreement  to  give  one  the 
deputation  of  a  public  office,  with  the  fees  and  costs  there- 
of, he  to  pay  thereout  a  specified  sum,  is  illegal  and  void, 
together  with  the  notes  given  to  secure  such  payment,  as 
against  a  statute  forbidding  the  sale  of  public  offices.''^ 
Where  a  statute  makes  it  penal  to  "establish,  institute,  or 
put  in  operation,  or  to  issue  any  bills  or  notes  for  the  pur- 
pose of  erecting,  establishing  or  putting  in  operation  any 


Hall  V.  Mullin,  5  Har.  &  J.  (Md.)  i^  Williamson  v.  Baley,    78  Mo. 

103 ;   Downina:  v.    Rinacr,   7  Mo.  636. 

•585  ;  Mndisou  Ins.  Co.  v.  Forsyth,  {b)    26  &  27  Vict.    c.    29  ;    lie 

2  Ind.  483  ;  Siter  v.  Sheets,  7  Id.  Parker,  21  Ch.  D.  408. 

132;      Hale      v.      Henderson,     4  '^o  Dillon  v.  Allen,  46  Iowa,  299. 

Hi.mph.    (Tenn.)   199 ;    and  cases  ^'    See    Petrel     Guano    Co.    v. 

infra.  Jarnetle,   25  Fed.   Rep.    675  :  and 

{a)   Gallini   v.  Laborie.  5  T.  R.  the  remission  of  the  forfeiture  by 

242.        See,    also.    De    Bepnis    v.  the  United  States  cannot  validate 

Armistead,  10  Bing.  110  ;  Levy  v.  the  contract  as  between  the  par- 

Yates,  8  A.  &  E."  129  ;   Elliot  v.  ties  :  Ibid.     See  post,  §  488. 

Richardson,  L.  R.  5  C.  P,  749.  ^-  Grant  v.  McLester,  8  Ga.  553  ; 

>^  Comly  V.  Ilillegass,  94  Pa.  St.  and  see  O'Rear  v.  Kiger,  10  Leigh 

132.  (Va.)  622. 


646  ILLEGAL  CONTItACTS.  [§  453 

banking  institution,  association,  or  concern,"  tlic  initiatory 
steps  for  such  purpose,  all  transactions  by  which  the  for- 
biilden  currency  is  put  in  circulation,  and  all  contracts  in 
furtherance  of  such  transactions  arc  rendered  illegal  and 
void."] 

§  453.  As  the  Pawnbrokers'  Act,  39  &  40  Geo.  3,  c.  99, 
requires  that  for  the  better  manifesting  by  whom  the  busi- 
ness of  a  pawnbroker  is  carried  on,  every  person  who  carries 
it  on  shall  cause  his  luime  to  be  painted  over  his  shop;  an 
agreement  for  a  partnership  in  that  business,  which  included 
a  stipulation  that  the  name  of  one  of  the  partners  should 
not  be  painted  up,  would  be  illegal  and  void  {a).  And  so 
would  be  an  agreement  to  let  premises  to  a  person,  with  the 
object  of  enabling  him  to  sell  spirituous  liquors  there  with- 
out a  license  (b).  Where  an  Act  provided  that  before  a 
ship  sailed,  the  master  should  obtain  the  clearing  officer's 
certificate  that  the  whole  cargo  was  below  deck,  and  forbade 
him,  under  a  penalty,  either  to  sail  without  the  certificate 
or  to  place  any  cargo  on  deck ;  a  voyage  in  contravention  of 
these  provisions  would  be  illegal,  and  a  policy  of  insurance 
on  the  cargo  effected  by  its  owner,  who  was  privy  to  the 
transaction,  void  (c).  The  25  &  26  Vict.  c.  89,  in  enacting 
that  no  company  of  more  than  twenty  persons  should  be' 
formed  for  carrying  on  any  business  for  gain,  unless  it  were 
registered,  rendered  illegal  and  void  all  contracts  for  carr}'- 
ing  on  its  business  if  the  company  was  not  registered  (d). 
So  where  a  statute,  under  penalty  of  fine  for  misdemeanor, 
prohibits  persons  from  transacting  business  in  the  name  of  a 
partner  not  interested  in  the  firm,  and  requires,  that,  where 
the  addition  "  &  Co."  is  used,  it  shall  represent  an  actual 
partner,  the  effect,  although  unexpressed  in  the  statute,  is  to 

«3  Davidson  v.   Lanier,  4  Wall.  v.  Hyde,  2  E.  &  E.  1,  and  1  E.  B. 

447.  &  E.    (170  ;   Wilson  v.  Rankin.  6 

(a)  Armstrong  v.  Lewis,  2  C.  &  B.  &  S.  208,  34  L.  J.  62;  Dudacon 

M.  274  ;    Warner  v.  Armh;trons;-,  3  v.  Pembroke,  L.   R.  9  Q.  B.   581  ; 

M.  &  K.  45  :   Gordon  v.  ilowden,  Atkinson  v.  Baker,  11  East,  135. 

12  CI.  and  F.  237  ;  Eraser  v.  Hill.  (d)  7?e  Padstovv    Assur.    Assoc., 

1  Maeq.  392.     [Comp.  ^  457.]  L.  R.  20  Ch.  D.  137  ;  Jennings  v. 

(6)  Richie  v.  Smith,  6  C.  B.  462.  Hammond,  9  Q.  B.  D.  225. 

(c)  See  the  two  cases  of  Cunard 


§§  454,  455]         ILLEGAL  CONTRACTS.  647 

render  the  prohibited  dealings  illegal  and  executory  contracts 
unenforceable  by  the  person  engaging  therein."] 

§  454.  Sales  for  Illegal  Purposes.— Where  a  statute  prohibited 
brewers  from  using  any  ingredients  but  malt  and  hops  in 
brewing  beer,  it  was  held  that  a  druggist  who  sold  drugs  to 
a  brewer  with  the  knowledge  that  they  were  to  be  used  in 
making  beer,  contrary  to  the  Act,  and  under  circumstances 
which  made  him  a  participator  in  the  illegal  transaction,  could 
not  recover  the  price  of  the  drugs  («).  [So  the  vendor  of 
land  sold  to  the  projector  of  a  prohibited  lottery  or  gift 
enterprise,  to  be  used  as  prizes  in  the  scheme,  cannot  recover 
the  price  stipulated  therefor,  or  any  unpaid  balance  due 
thereon.'^]  But  mere  knowledge  of  the  purposed  illegality, 
without  actual  participation  or  privity  in  it,  would  not  affect 
the  contract.  Thus,  a  sale  of  goods  in  a  foreign  country, 
with  the  knowledge  that  the  purchaser  intended  to  smuirale 
them  into  England,  but  without  any  participation  in  the 
transaction  ((6),  [or  a  sale  of  liquors  in  a  state  where  the  sale 
was  legal,  with  knowledge  that  the  vendee  intended  to  sell 
them  in  his  state,  where  the  sale  was  prohibited,*"]  would  not 
be  invalid. 

§  455.  Forms,  etc.,  of  Contracts  Prescribed  by  Statute. — The 
question  has  frequently  arisen,  when  an  Act  prescribes, 
regulations,  forms,  or  other  attendant  circumstances,  more 
or  less  immediately  connected  with  contracts,  either  with  or 

"    Swords  V.  Owen.    43    How.  L.  J.  117  ;    Beeston  v.   Beeston,   1 

Pr.  (N.  y.)  167  :   34   N.  Y.  Supr.  Ex.  D.  13  ;  Blocker  v.  Ward,  5  B, 

Ct.  277.      And  see  Zimmerman  v.  &  Ad.  1052. 

Erliard,  58  How.  Pr.  (N.  Y.)  11  ;  8  "  Hooker  v.  De  Palos,  28  Ohio- 

Daly,  311,   that  the  addition   "  &  St.  251. 

Co."  may  represent  the  wife.     See,  (6)  Holman    v.   Johnson,  Cowp. 

also,  Noel  v.    Kinnev  (N.    Y.),    8  341  ;  comp.   Waymell  v.  Read,  5- 

Ceiitr.  Rep.  58.  T.  R.  599  ;  Liafhtfoot  v.  Tennant, 

(a)    See     Holman    v.    Johnson,  1  Bos.  &  P.   551.      See  Hobbs-v. 

Cowp.  341  ;   Abbot  v.  Rogers.  16  Henning.  17  C.   B.  N.   S.  791  •  34 

C   B.  277  ;   Langton  v.  Hughes,  1  L.  J.  117. 

M.  &  S.  593;  Hodgson  v.  Temple,  ^e  gniich  v.   Godfrey,  28  N.  H. 

5  Taunt.  81;  5  Paxlon  v.  Popham,  379.  (See  Howell  v.  Stewart.  54 
9  East,  408  ;  Gaslight  Co.  v.  Tur-  Mo.  400,  post,  §  458,  note  48.) 
cer,  6  Bing.  N.  C.  324.  See,  also,  But,  where  the  ^seller  so  packed 
Bridges  v.  Fisher,  3  E.  &  B.  642,  the  liquor  as  to  show  an 
23  L.  J.  276  ;  Geere  v.  Mare,  2  H.  attempt  to  conceal  the  fact  that  ii 

6  C.  339,  33  L.  J.  50  ;  Clay  v.  was  liquor,  the  aid  of  the  N.  II. 
Ray,  17  C.  B.  N.  S.  188  ;  Hobbs  v.  courts  was  refused  him  to  recover 
Henning,  17  C.  B.  N.  S.   791,  34      Fisher  v.  Lord,  63  Id.  514. 


C4S 


ILLKGAL  CON'IKAOTS. 


[§  i55 


without  penalties  for  non-conipli;uico,  wlictlier  a  contract 
entered  into  in  disregard  of  any  of  tlioin  is  thereby  [)rohibited, 
and  so  ille<i^al,  or  wliether  the  object  of  the  Act  is  not  sntti- 
ciently  attained  by  the  imposition  of  tlie  penalty  ;  and  the 
chief  test  for -its  decision  seems  to  be  whether  the  provisions 
have,  or  not,  some  object  of  general  j^olicy,  whicli  requires 
that  the  contract  should  be  invalidated.  [Where  a  statute 
prohibits  the  making  of  contracts  in  any  but  a  prescribed 
manner,  they  are,  of  course,  void,  if  made  in  any  other ;" 
and,  in  general,  if  a  statute  prohibiting  something  to  be  done 
cannot  otherwise  be  made  to  accomplish  the  object  intended 
to  be  effected  by  it,  whatever  is  done  in  contravention  of  its 
prohibition  must  be  adjudged  void  and  inoperative.'^]  Thus, 
it  has  been  lield  that  enactments  whicli  required,  under 
penalties,  that  all  bricks  made  for  sale  should  be  of  at  least 
certain  specified  dimensions  (a) ;  or  that  persons  who  sold 
corn,  excej)t  by  certain  measures,  should  be  liable  to  a 
])eiialty  {h) ;  or  that  vendors  of  coals  should,  under  a  penalty, 
deliver,  with  the  coals  sold,  a  ticket  S(^tting  forth  their 
weight  and  the  immber  of  sucks  in  which  they  are  con- 
tained (c)  ;  or  that  farmers  and  others  should  sell  butter  in 
firkins  of  a  certain  size,  branded  with  their  own  and  the 
makers  names  (d) ;  [that  vendors  of  artificial  fertilizers 
should  cause  the  same  to  be  branded,  tagged  and  inspected 
before  offering  them  for  sale  f^]  prohibited  all  contracts  made 


'^'  ^tna  Ins.  Co.  v.  Ilaivej',  11 
Wis.  394 ;  e.  r/.,  the  prohibition 
against  a  foreign  insurance  com- 
pany's doing  business  in  a  state, 
without  a  license  from  the 
same  :  Ibid.,  cit.  Williams  v. 
Cheeney.  3  Gray  (Muss.)  215 ; 
Jones  V.  Smith,  Id.  oOO.  But  see 
Columbus  Ins.  Co.  v.  Walsh,  18 
Mo.  229  ;  Clark  v.  MiddJeton,  19 
Id.  53.  Comp.  post,  ^  4r)8.  Brook- 
lyn Life  In.s.  Co.  v.  Bledsoe,  52 
Ala.  538. 

-8  Nelson  v.  Denison,  17  Vt.  73. 

(a)    Law 
300. 


{b)  Tyson   v 
Yo.  119. 

(c)   Little   V. 
192:  Cundeli  v 
.!76. 


Ilodson,    11  East, 
Thomas,   IMcCl.  & 


Poole,    9  B.   &  C. 
.  Dawson,  4  C.  B. 


(d)  Forster  v.  Taylor,  5  B.  &  Ad. 
887 

"'  Conley  v.  Sims,  71  Ga.  161. 
In  this  case,  it  appears,  the  vendor 
had  tlirce  kinds  of  ferlilizcis  in  his 
warehouse,  two  of  them  iiisiiccted, 
the  third  not  inspected,  branded  or 
tagged.  The  bags  of  these  three 
kinds  were  cut  in  the  house,  and 
after  all  the  sound  bags  with  tags 
were  sold,  the  refuse  mixture  was 
gathered  up  and  bagged,  tags  were 
piocured  from  persons  other  than 
inspectors  and  attached  to  the 
bags,  and  the  mixture  sold.  It 
was  held  that  the  sale  was  illegal 
and  void,  and  not  the  basis  of  an 
action.  Compare  Niemeyer  v. 
Wright,  75  Va.  239,  where  it  was 
said,  that,  when  a  statute  pro- 
hibiting and  punishing,  or  merely 


§  456]  ILLEGAL  CONTRACTS.  (Ul) 

in  disregard  of  sneli  provisions,  and  made  them  void,  so  that 
no  action  could  be  maintained  for  tlie  price  of  the  goods 
sold.  On  the  same  ground,  where  printers  were  required 
to  affix  their  names  to  the  books  which  the}'  printed,  it  was 
lield  that  a  printer  could  not  maintain  an  action  for  his  work 
and  materials  in  printing  a  book  in  whicii  he  had  omitted  to 
comply  with  this  statutory  provision  {a).  The  policy  of 
these  Acts  was  to  prevent  all  such  dealings  ;  and  it  would 
have  been  imperfectly  attained,  if  the  sellers  had  been 
merely  subjected  to  a  penalty,  wdiile  the  purchasers  remained 
liable  to  be  sued.  • 

§  456.  Efifect  on  Contracts  of  Absence  of  Statutory  Personal 
Qualification.— The  same  stringent  effect  has  been  given  to 
enactments  which  imposed,  under  a  ])enalt3',  regulations 
relating  to  personal  qualification.  Thus,  an  Act  which 
imposed  a  penalty  on  an  unqualified  person  who  drew  con- 
veyances for  reward,  would  invalidate  any  contract  with  him 
for  such  a  purpose  (J).  So,  an  Act  which  imposed  penal- 
ties on  persons  for  acting  as  brokers  in  the  City  of  London, 
who  had  not  been  admitted  and  paid  certain  fees  for  the 
benefit  of  the  city  (inasmuch  as  its  object  was,  not  the 
enrichment  of  the  citizens  of  London,  but  the  protection  of 
the  public  by  preventing  improper  persons  from  acting  as 
brokers),  was  held  to  invalidate  the  dealings  of  an  unqualified 
broker,  so  far  as  to  prevent  him  from  recovering  payment 
for  his  services  in  that  capacity  {c).  [One  who  sells  liquors 
without  license,'"    or   follows  the  occupation  of   a   peddler 

piuiishing  <in  act  is  silent  and  con-  A.  335  ;  and  see  Stephens  v.  Robin- 
tains  nothing  from  which  the  con-  son,  3  C.  «&  J.  209. 
traiy  can  heinferred,  a  contract  in  (b)  44  Geo.  3,  c.  98  ;  Tayloi-  v. 
contravention  of  it  is  void, — but  Crowland  Gas  Co.,  10  E.x.  293. 
not  always  where  it  merely  im-  (c)  6  Anne,  c.  10:  Cope  v.  Row- 
poses  a  penalty  for  doing  or  lands,  2  M.  &  W.  149.  But  it 
omitting  a  thing.  In  this  case  the  would  not  ailecthis  right  to  recover 
act  concerning  the  sale  of  ferti-  from  his  emi)loyer  money  paid  on 
lizers  was  highly  penal,  and  also  his  behalf  to  complete  the  irregular 
gave  a  remedy  to  persons  injured,  purchase  ;  for  this  was  a  transac- 
by  lecovery  against  the  seller.  It  tion  distinct  from  his  character  of 
was  said,  at  p.  247,  that  "the  broker:  Smith  v.  Lindo,  5  C.  B. 
infliction  of  the  forfeiture  in  one  N.  8.  587.  Comp.  Steel  v.  Henley, 
aspect  is  the  exclusion  of  it  in  any  1  C.  &  P.  574  ;  Latham  v.  Hyde, 
other."     See  post.  §  458.  1  C.  &  M.  128. 

(a)  Bensley  v.  "Bignold,  5  B.  &  so  Bach  v.   Smith,  2  Wash.  145. 


650  ILLEGAL  CONTKACTS.  [§  45T 

without  license,"  wliere  the  kiw  requires  such,  and  punishes 
deiilings  without  license,  cannot  recover  the  price  of  the 
articles  so  sold,  nor  sue  upon  a  promissory  note  given 
therefor."  Nor,  where  a  statute  requires  engineers  on  steam- 
boats to  be  licensed,  can  one  who  is  not,  recover  stipulated 
wages  for  services  as  such  ;"  nor  can  an  unlicensed  commis- 
sion broker  recover  commissions  for  his  services,  where  a 
statute  requires  such  persons  to  be  licensed  and  punishes  one 
acting  in  tluit  capacity  without  license. °* 

§  457.  When  Contract  Contrary  to  Statute  Upheld.  Revenue 
Laws. — But  where  the  object  of  the  Act  is  sufficiently 
attained  without  giving  tiic  prohibition  so  stringent  an  effect, 
and  where  it  is  also  collateral  to  or  independent  of  the  con- 
tract, the  statute  is  understood  as  not  affecting  the  validity 
of  the  contract.  [Indeed,  the  solution  of  the  question, 
whether  or  not  a  statute  is  to  have  the  effect  of  rendering 
acts  and  contracts  in  contravention  of  it  illegal  and  void,, 
depends  upon  the  intent  of  the  Legislature,  as  gathered  from 
the  entire  enactment.^*  It  has  been  said  that  such 
an  intent  is  to  be  presumed  unless  the  contrary  can  be 
fairly  inferred."  On  the  other  hand,  it  has  been  asserted,, 
that,  if  the  imposition  of  the  penalty  upon,  or  the  prohibition 
under  a  penalty  of,  an  act  or  contract,  is  simply  for  the 
purpose  of  raising  or  protecting  the  revenue,  an  action  may 
nevertheless  be  based  upon  it ;  i.  e.,  whilst  the  penalty  may 
be  incurred,  the  actor  contract  is  not  itself  illegal  and  void." 

*'  Bull  V.  Harragan,  17  B.  Men.  of  an  act  which  is  a  mere,  revenue 

(Ky.)  349.  measure  designed  to  raise  revenue 

^■^  Con  tracts  of  sale  made  by   a  from  a  business  esteemed  by  the 

merchant  in  his  business  during  a  Legislature     as    profitable:       see 

time  when  lie  carried  it  on  without  (..indsey  v.  Rutherford,  17  B.  Mon. 

tlie    required    license,      were     of  (Ky.)  245.     Comp.  post,  i^  457. 

course     held   void    under    an   act  ^^  See  Bemis  v.    Becker,   1   Ka». 

which  in  terms  d'     ared  tliem  so:  226;  Vining  v.   Bricker,    14    Ohio 

DecoU  V.  Lewen 1,  57  Miss.  331  ;  St.  331. 

Anding   v.    Levy,    Id.     51.      See  ^^   Bemis     v.     Becker,      supra ; 

Lindsey  V.  Rutherford,  infra.  Niemoyer  v.    Wright,  75  Va.  239.. 

23  The  Pioneer,  D<  ady,  72.  Compare  Pratt  v.  Short,  79  N.  Y. 

2^  Holt  V.  Green,  73  Pa.   St.    198.  437,  t^  458. 

But  a  c<)!itract  of  .sale  or  purchase  ^''  See   Swan    v.    Blair,   3  CI.    & 

made  with  such  a  broker  would  be  Fin.,  at  p.  632,  /jcr  Lord  Brougham; 

valid,  though  both  the  buyer  and  Lind.sey  v.  Rutherford,  17  B.  Mon. 

seliermayhave  incurred  the  j)eualty  (Ky.)  245,  248,  ante,  §  450,  note  34.. 


^  457]  ILLEGAL  CONTRACTS.  651 

But  this  proposition  has  been  doubted  altogether/*  and  it 
would  seem  clear  that  it  cannot  apply  where  there  is  an 
express  prohibition  of  the  act  or  contract,  either  for  the 
protection  of  the  revenue  or  for  any  other  purpose/"  If, 
however,  there  is  no  express  prohibition  of  the  act  or  eoii- 
li-act,  but  "a  penalty  is  imposed  on  contracts  or  dealings  for 
the  purpose  of  protecting  the  revenue,  and  of  providing 
for  tlie  proper  payment  of  duties,  no  prohibition  is  implied 
by  law,  and  such  contracts  or  dealings,  though  they  render 
the  persons  who  engage  in  them  liable  to  a  penalty,  may 
be  enforced  by  action.""]  Thus,  where  an  Act  sub- 
jected every  licensed  distiller  to  a  penalty  of  200?.,  if  he  sold 
spirits  by  retail,  or  even  wholesale,  anywhere  within  two 
miles  of  the  distillery,  and  required  that  every  license  should 
state  the  name  and  abode  of  every  person  licensed  ;  it  was 
held  that  the  omission,  in  the  license,  of  the  name  and  abode 
of  one  of  the  five  partners  in  a  distillery,  and  the  retailing 
of  spirits  by  him,  did  not  affect  the  sale,  so  as  to  prevent 
the  partnership  from  recovering  the  price  (a).  So,  the  pro- 
visions of  an  Act  which  imposed  penalties  on  every  dealer 
in  tobacco  who  omitted  to  paint  his  name  over  the  entrance 
of  his  premises,  or  who  dealt  in  tobacco  without  a  license,, 
were  understood  as  not  affecting  the  validity  of  a  contract 
by  a  tobacconist  who  had  neglected  to  comply  with  thenu 
They  were  mere  fiscal  regulations,  the  breach  of  which  was 
unconnected  with  the  contract ;  their  object  was  to  protect 
the  revenue,  and  this  was  completely  attained  b}'  the  enforce- 
ment of  the  penalty  (h).  The  Pawnbrokers'  Act,  39  &  40 
Geo.  3,  c.  99,  already  referred  to,  affords  an  illustration  of 
the  two  classes  of  cases.  It  requires  a  pawnbroker  to  paint 
his  name  and  business  over  his  door ;  and  it  also  requires 
that  before  he  makes  any  advance  on  a  pledge,  he  shall  make 
certain  inquiries  of  the  pledgor  as  to  his  name,  abode,  and 
condition  in  life,  and  shall  enter  the  results  of  them  in   his 

88  See  1  Pars.,  Contr.,  p.  *459.  Taunt.  181  ;  Johnson  v.   Hudson, 

39  VVilb..    Stat.    L.,    p.    84,    cit.  11  East,  180  ;  Wctherell  v.   Jones, 

Cope  V.   Rowlands,  2  M.  &  W.  at  3  B.  &  Ad.  231  ;  Bailey  v.  Harris, 

p.  157.  per  Parke,  B.  12  Q.  B.  905. 

•'o  Wilb.,  Stat.  L.,  pp.  83-84.  (61  Smith  v.  Mawhood,  14  M.   & 

(a)  Brown  v.  Duncan.   10  B.  &  W.  452. 
0.    93  ;     Hodo-son    v.     Temple,    5 


'652  ILLEGAL  CONTRACTS.  [§  458 

books  and  on  the  duplicate.  A  breach  of  the  former  pro- 
vision "W'onld  not  affect  the  validity  of  a  pledge  ;  but  a  breach 
of  the  latter  would  do  so,  for  thej  arc  directly  and  imme- 
diately connected  with  the  contract  (a).  The  object  of  the 
Legislature  by  vsncli  regulations,  which  was  to  guard  against 
abuses,  would  be  but  imperfectly  attained  if  the  contract 
were  held  good. 

§  458.  statute  Operating  on  Particular  Party  or  Declaring  Par- 
ticular Result. — [And  it  would  seem,  that,  where  a  statute 
imposing  a  penalty  upon  the  doing  of  an  act  singles  out  as 
the  object  of  its  prohibition  one  of  the  parties  to  the  trans- 
action, or  has  in  contemplation  only  one  particular  person  or 
class  of  persons  as  intended  to  be  affected  and  punished  by 
it,  it  will  not,  in  the  absence  of  an  express  declaration  that 
contracts  involving  a  disregard  or  breach  of  its  provisions 
sliall  be  affected  with  illegality,  be  construed  as  producing 
this  result,  especially  where  the  effect  would  be  to  prejudice 
honest  claims  and  permit  dishonest  defences.  The  court 
will  not  ignore,  in  arriving  at  a  conclusion  ujion  this  question 
•arising  under  a  particular  act,  the  whole  language  and  subject- 
matter  of  the  same,  the  evil  it  is  intended  to  remedy  or  pre- 
vent, the  purposes  it  seeks  to  accomplish  ;"  and  whilst 
adhering  to  the  rule  of  refusing  its  aid  to  one  whose  cause  of 
action  is  founded  upon  a  prohibited  transaction,"  even  with 
the  consent  of  parties,*'  it  will  not  extend  that  rule  "so  far 
as  to  encourage  violations  of  contracts  for  payment  of  honest 
debts,  as  between  the  parties,  because  they  grow  out  of 
tainted  originals.""  Thus,  where  an  act  imposed  a  penalty 
upon  any  person  selling  or  leasing  aiiy  lot  in  any  town,  city, 
or  addition  thereto,  until  the  plot  thereof  had  been  duly 
acknowledged  and  recorded,  it  was  held  that  no  prohii)ition 
of  the  sale  itself  was  implied,  but  only  a  penalty  imposed 
upon  the  seller ;  that,  therefore,  the  purchase  of  a  lot.  the 
plot  of  which  was  unrecorded,  etc.,  was  valid,"  and    con- 

{a)  Fergusson     v.     Norman,    5  Pa.  St.  453. 

Bing.  N.   C  76,  better  reported  6  ^po^lerv.  Scull.v,72P.i.  St.  450. 

Scott,  794.     [Comp.  ^  453.]  ''^  Bly  v.  Nat.   B'k,  supra,   at  p. 

4'    Paniiborn    v.    Westlake,    30  450,  ;)r7- Trunkey,  P.  J.,  approved, 

Iowa.  546.                                      .  :''l  P-  459,  per  Our. 

"-  Ibid.  ;    Watrous  v.    Blair,    32  «    Watrous    v.     Blair,     supra  ; 

Iowa,  58;   Bly  v.   Nat.  Bank,    79  Strong  v.  Darling,  9  Ohio,  201. 


§  45 S]  ILLEGAL  CONTRACTS.  653- 

SGqucntlj  a  note  giveu  for  the  purchase  mouey  oi  such  a  lot, 
recoverable."]  It  has  been  held  that  aii  enactment,  which 
provided  that  no  person  interested  in  a  contractt  with  a  com- 
pany should  be  capable  of  being  a  director,  and  that  if  a 
director  of  a  company  were  concerned  in  any  conti'act  with 
the  company,  he  should  cease  to  be  a  director,  did  not,  at  law, 
invalidate  such  a  contract  {a).  [And  the  fact  that  a  con- 
tractor for  the  construction  of  a  railroad  had  agreed  with  one 
of  the  directors  of  the  company,  to  divide  with  Iiim  the  profits 
of  the  contract  was  held  not  to  render  void  the  bonds  issued 
in  payment  of  work  done  under  the  contract,  by  reason  of  an 
act  which  declared  any  director,  etc.,  who  directly  or  indirectly 
had  a  contract  with  the  company  guilty  of  a  felony,  made 
ineligible  as  a  director  any  person  having  an  interest  in  such 
a  contract,  and  declared  void  the  contracts  made  by  the 
directors  of  a  company  containing  any  such  person  in  its 
board  of  directors/'  And  where  an  act  made  the  introduction 
of  Mexican,  Indian  or  Texan  cattle  at  a  certain  season  'a 
misdemeanor  in  the  drover,  it  was  held  that  the  lender  of 
money  for  such  purpose  was  nevertheless  not  barred  from  a 
recovery  of  the  same.^'  Upon  a  similar  principle,  it  would 
seem,  it  was  held,  that,  unless  a  statute  prohibiting  an  act 
also  declares  it  void,  a  party  not  privy  to  the  act  itself,  nor 
involved  in  its  guilt,  may  recover  from  the  guilty  actor.^^' 
Similarly,  it  is  said,  that,  where  a  prohibitory  act  points  out 
the  consequence  of  its  violation,  and  it  appears  to  have  been 
the  legislative  intent  to  exclude  any  other  penalty  or  forfeit- 
ure, then  such  as  is  declared  in  the  statute,  and  no  other, 

*^  Pangborn  v.  Westlake,  supra,  sold  is  designed  to  be  applied  to  an 

(a)  Foster  v.  Oxford,  &c.,  R.  Co.,  unlawful  purpose,  will  not  prevent 
13  C.  B.  200,  22  L.  J.  99.  Comp.  a  legal  recovery  based  on  sucli 
Barton  v.  Port  Jackson  Co.,  17  loan  or  sale.  See  i:;  454. 
Barbour.  New  York  11.  397.  In  *^  Brooklyn  Life  Ins.  Co.  v. 
equity,  the coniruct  would  be  void:  Bledsoe,  52  Ala.  588,  cit.  Whet- 
Aberdeen  R.  Co.  V.  Blaikie,  1  stone  v.  Bank,  9  Id.  875.  The 
Macq.  461.  former  was  the  case  of  an  insurance 

■"  Chouteau  v,  Allen,  70  Mo.  290,  company    doing  business    in    the 

Sherwood,   C.  J.,  and  Norton,  J.,  state  without   complying  with  iis. 

diss.     See  post,  §  459.  laws.      It  was  held  that  the  com- 

*8   Howell    V.  "^Stewart,    54   Mo.  paiiy,  not  the  citizen  with  whom 

400,  it  being  there  said,  that,  apart  it  contracted,  violated  the  statute, 

from  felonies  or  crimes  involving  and  that  the  latter  could  not  avail 

great   moral   turpitude,    the    mere  itself  of  its  own  wrong  to  avoid  the 

knowledge  of  the  lender  or  vendor  contract.   Comp.  ante,  §  455,  iEtna- 

that  the  money  loaned  or  property  Ins.  Co.  v.  Harvey,.  11.  Wis.  394. 


Gni  ILLEGAL  CONTRACTS.  [§  459 

will  be  enforced,  and  an  action  maybe  nKiintainod  iijion  the 
transaction  of  which  tlie  prohibited  act  was  a  part,  if  it  can 
be  done  without  sanctioning  the  illei'^ality/''  Thus,  where 
an  act  incorporating!^  a  safe  deposit  and  savings  institution 
gave  it  power  to  loan  its  funds,  but  restricted  the  invest- 
ment of  them  to  certain  specified  securities,  not  including 
commercial  paper,  it  was  held,  that,  as  discounting  such  paper 
was  proliibited  to  any  corporation  not  authorized  by  law 
thereto,  and  paper  discounted  contrary  to  the  prohibition 
was  declared  void,  a  promissory  note  discounted  by  the 
company  was  necessarily  void ;  but  that  the  illegal  act  of  the 
directors  in  making  the  discount  did  not  forfeit  the  money 
loaned,  and  that  it  might  be  recovered,  though  the  security 
was  void.^' 

§  459.  statute  Made  for  Protection  of  One  Party.  Remote- 
ness.—[It  is  said,  that,  whilst  an  act  declared  void  by  the 
Legislature  upon  grounds  of  public  policy  is  void  to  all 
intents,  if  the  manifest  purpose  of  a  statutory  prohibition  is 
to  protect  certain  individuals  in  their  own  rights,  they  only 
are  entitled  to  take  advantage  of  it."^  It  would  seem  to 
follow  from  this  principle,  that,  when  a  statute  prohibits  the 
doing  of  an  act  for  the  pi'otection  of  a  particular  party,  as 
e.  g.^  in  the  case  of  the  statute  whicli  forbids  national  banks 
to  loan  to  any  one  party  a  sum  exceeding  in  amount  one- 
tenth  of  their  capital  stock,"  whilst  it  would  subject  the 
persons  violating  the  prohibition  to  the  penalties  prescribed, 
it  would  not  render  the  contract  made  in  violation  of  the 
same  illegal  and  irrecoverable.     Such,  indeed,  as  has  alreadv 

50  Pratt  V.  Short,  79  N.  Y.  487.  U.    S.   v.    Martin,    94  U.    S.    400. 

See  Niomeyer  v.   Wright,   75  Va.  where  it  was  held,  that,  in  spite  of 

239,  ante,  ^  455,  note  29.  the  Eiglit-hour  hiw,  a  valid  agree- 

^^  Pratt  v.  Short,  supra.  ment  might  he  entered  into  niak- 

''^  Beecher  v.  RoU'g  Mill  Co.,  45  ing  a  day's  lahormore  or  less  than 

Mich.  103.  eight  hours,  the  Court,  at  p.  404, 

"   See  O'llare  v.   Nat.  B'k,  77  says  :    "  We     regard    the    statute 

Pa.  St.  90.     As  to  the  effect  of  a  cliiefly  as  in  the  nature  of  a  direc- 

statutory  requirement  to  insert  in  tion  from  a  princijial  to  his  agent, 

•certain  contracts  a  stipulation  tliat  that  cigiit  hours  is  dceined  to  be  a 

eight  Jiours   shall  be  a  day's  labor  proi)er  length  of  time  for  a  day's 

(held  to  be  intended  merely  for  the  labor,  and  that  his  contracts  shall 

protection  of  laborers),  upon  a  con-  be  based  ui)on  that  theory.       It  is 

tract  from  which  that  stipulation  a  matter  between  the  principal  and 

was  omiited,  see  Babcoclc  V.  Good-  his  agent,  in  which  a  third  party 

rich,  47  Cul.  488,  ante,  §  268.      In  has  no  interest." 


§  459]  ILLEGAL  CONTRACTS.  655 

been  seen,"  is  the  construction  placed  upon  sucli  snact- 
nieiits.  JSTor,  where  tlie  orii^in  of  a  contract  is  founded  in 
an  illegal  transaction,  but  tiie  latter,  at  the  time  and  in  the 
sliape  in  which  the  contract  is  pressed  for  enforcement,  has 
become  so  remote  that  it  requires  no  aid  from  the  illci^al 
transaction  to  support  it,  will  the  court  go  back  to  its  first 
inception  and  give  the  statute  against  which  it  offended  the 
effect  of  avoiding  it.  "If  an  act  in  violation  of  either 
statute  or  common  law  be  already  committed  and  a  subse- 
quent agreement  entered  into,  which,  though  founded  there- 
upon, constituted  no  part  of  the  original  inducement  or  con- 
sideration, such  agreement  is  valid.""  Plence,  in  a  suit  by 
41  national  bank  against  an  endorser  on  a  note  discounted  for 
the  drawer,  a  defence  averring  that  the  defendant  was  an 
accommodation  endorser,  that  part  of  the  consideration  of 
the  note  was  a  balance  for  which  the  drawer  had  become 
liable  as  accommodation  endorser  for  another  who  had 
borrowed  of  the  bank  in  excess  of  ten  per  cent,  of  its  capi- 
tal, would,  even  if  the  latter  could  have  been  a  defence  as 
to  the  original  transaction,  be  insufficient  to  bar  a  recovery 
by  the  bank  against  the  defendant ;  the  plaintiff  requiring 
no  aid  from  the  original  transaction  to  make  out  its  case, 
imd  the  defendant's  attempt  being  to  defeat  a  recovery,  not 
by  showing  anything  done  at  the  time  his  obligation  was 
given,  but  because  of  the  offence  of  the  borrower  and 
lender  in  the  remote  original  transaction." 

[It  may  be  here  added,  that,  whatever  the  solution  of  this 
delicate  question  of  the  effect  of  a  st::tntory  prohibition 
upon  the  legality  of  acts  and  contracts  in  disregard  of  it, 
may,  in  any  particular  instance,  be,  the  question  whether 
the  act  prohibited  is  malum  prohibitum  or  malum  per  se,  is 
said  to  have  nothing  to  do  with  it."] 

"  Ante,  g  137.     See,  also,  §  458.  Smith,  Morr.  (la.)  70,  where  it  is 

'"^  Thomas  v.  Brady.  10  Pa.    St.  said,  that,  if  the  act    to   which  a 

164,    170,  qiiotino^   and  approving  penalty  is  attached  is  not  iutrinsi- 

Stnry,  (Contracts,  j?  227.  cally  wronar.  nor  contrary  to  public 

^«  Bly   V.    Nat.   B'k,  79  Pa.  St.  poli'cy,the  penalty  satislies  the  law, 

453.  and  that,  consequently,  the  attach- 

"  Plolt  V.  Green,  73  Pa.  St.  198,  ing  of  a  penalty  to  an  act  does  not 
•200.  Comp.  Dupre  v.  McCright,  G  necessarily  render  illegal  all  con- 
La.  An.  146,  147,  where  this  dis-  tracts  in  relation  thereto,  as  if  the  act 
tinction  is  hinted  at,    and   Hill  v.  had  been  expressly  ancl  absolutely 


C5C)  ILLEGAL    CONTRACTS.  [§  460 

§  460.  Partial  Illegality  of  Contract. — It  waS  OllCe  consid- 
ered a  rio^id  rule  tliiit  wlien  the  bad  part  of  a  contract  was 
made  illegal  or  void  by  statute,  the  whole  instrument  was 
invalidated  ;  while,  it*  the  invalid  ])art  was  void  at  conjmon 
law,  the  remainder  of  the  instrument  was  valid  ;  a  statute 
being,  it  was  said,  strict  law,  while  the  common  law  divided 
according  to  common  reason  (a)  ;  or-again,  the  former,  like 
a  tyrant,  making  all  void  ;  the  latter,  like  a  nursing  j'athei', 
making  vuid  only  the  part  where  the  fault  is,  but  preserv- 
ing the  I'est  (Z»).  But  this  is  not  the  true  test.  The  ques- 
tion whether  the  whole  instrument,  or  only  the  invalid  part 
is  void,  depends  on  the  more  rational  ground  whether  the 
vitiated  part  be  severable  from  the  rest,  or  not.  If  the  one 
cannot  be  severed  from  the  other  part,  the  whole  is  void ; 
but  if  it  be  severable,  whether  the  illegality  was  created  by 
statute  or  by  the  common  law,  the  bad  part  may  be  rejected, 
and  the  good  retained  (c).  If  a  deed  was  made  on  a  consid- 
eration, part  of  which  was  illegal,  the  whole  instrument 
would  be  void,  for  every  part  of  it  would  be  affected  by  the 
illegal  consideration  {d);  and  a  contract  of  which  the  con- 
sideration is  in  any  part  illegal,  cannot  be  enforced  ;  [as, 
where  some  of  the  transactions  between  the  payee  and 
maker  of  a  note  secured  by  mortgage  were  illegal  gam- 
ing, transactions  the  whole  security  is  void.^**]  But  it  wonld 
be  otherwise  if  only  some  of  the  promises  which  constituted 
the  consideration  were  illegal,  and  the  illegality  did  not 
taint  the  rest.  Thus,  although  a  rent-charge  on  a  living 
was  invalidated  by  a  statute,  which  declared  all  chargings 
of  benefices  with  pensions  utterly  void  ;  a  covenant  in  the 
deed  which  created  such  a  charge,  to  pay  it,  was  held  good 
and  was  enforced  {e).     So,  though  a  bill  of  sale  transferring 


IM-ohibitcd  ;  c.  //.,  a  note  given  for  &  C.   ?>21  ;  Exp.   Browninir,  L.  R. 

improvements  upon  public  lands.  9  Ch.  583. 

And  see  Howell  V.  Stewart,  54  Mo.  {d)  Per  Tindal,  C.  J.,  in   Waite 

400,  ante,  §  458,  note  48.  v.    Jones,    1   Bing.    N.    C.    C03,    1 

{(i)  Norton   V.    Simmes,  Hob.  14.  Scott,  730  ;  and  Sliackeli  v.  Hosier, 

(6)  Malevererv.  liedsliaw,  IMod.  3  Scott,  5!),  2  Bing.  N.    C.    646; 

35;  Mosdel  v.  Middletou,  1  Vcntr.  Collins  v.  Gwynne,  9  Bing.  544. 

237.  =-»  Barnard  v.  Backliaus\  52  Wis. 

(c)  See  ;:)«/•  Willes,  J.,  in  Picker-  593. 

ing  V.   Ilfracombe  K.  Co.,  I..  11.  3  {c)  Mouvs  v.  Leake,  8  T.  R.  411. 

C.  P.  250  :  Bidden  v.  Leader,  1  li. 


§  460]  ILLEGAL  CONTRACTS.  657 

a  ship  by  way  of  mortgage  was  void,  in  consequence  of  the 
omission  to  recite  the  certificate  of  registry,  a  similar  cove- 
nant, by  the  mortgagor,  to  repay  the  money  advanced,  and 
secured  by  the  same  deed,  was  held  valid  and  binding  (a).- 
So,  a  tenant  ma)'  be  sued  on  his  covenant  to  pay  his  rent 
clear  of  all  taxes,  although  in  another  part  of  the  lease  he 
covenants  to  pay  the  landlord's  property  tax  ;  an  engage- 
ment which  was  penal  and  void  (b).  [Again,  where  an  auc- 
tioneer, licensed  to  sell  propei'ty  in  a  certain  county,  had  sold' 
seventy-six  lots  of  ground,  two  of  which  were  in  his  proper 
county,  and  the  rest  in  another  in  which  it  was  illegal  for 
liira  to  sell,  he  was  permitted  to  recover  for  the  former,  on 
the  ground  that  the  claim  was  not  upon  an  entire  contract, 
the  sale  of  each  lot  being  a  distinct  contract  and  basis  of 
claim,  and  there  being  no  express  promise  to  pay  a  fixed 
Bum  as  compensation  for  the  entire  sale/*  By  way  of  con- 
trast, and  as  illustrating  this  distinction,  may  be  cited  the 
case  of  a  candidate  for  office  agreeing  to  pay  to  an  associa- 
tion of  persons  conducting  the  election  a  certain  sum 
assessed  by  them  against  him  as  his  share  of  expenditures 
made  by  them  :  if  anj''  part  of  their  expenditures  were 
within  the  prohibition  of  a  statute  making  it  illegal  for 
candidates  to  contribute  money  for  election  expenses,, 
except  for  certain  specified  purposes,  the  whole  contract 
was  illegal  and  void,  although  more  than  the  sum  assessed 
and  agreed  to  be  paid  was,  in  fact,  expended  for  purposes 
for  which  he  might  lawfully  contribute.*"  Again,  there  is 
said  to  be  a  marked  distinction  in  the  object  of  statutes- 
which  avoid  a  particular  provision  in  an  instrument,  and 
that  of  those  which  avoid  the  whole  instrnment,  on  account 
of  the  illegality  of  the  purpose  of  a  part.  In  the  former 
case,  such  a  provision  is  made  void  as  a  matter  of  policy  as 
to  it  alone;  in  the  latter,  the  whole  instrument  is  looked, 
upon  as  an  engine  of  fraud  or  other  violation  of  the  statute,. 

(a)  Kenison  v.  Cole,  8  East,  231.  Buckhurst    Peerage,    2    App.    1 

{b)  See,  also,  Gaskell  v.  King,  11  29. 

East,    1G5 ;     Howe  v.    Syuge,    15  '-^  Robinson    v.    Green,    3    Met 

East,  44C  ;  Readsliaw  v.   Balders,  (Mass.)  159. 

4     Taunt.      57 ;      Greenwood    v.  •^o  Foley  v.    Speir,    100    N     Y 

Hammersley,  5  Taunt.  72G  ;  Pallis-  552. 
tci  V.  Gravesend,  9  0.  B.  774  ;  The 
42 


658 


ILLEGAL  CONTRACTS. 


[§  401 


in  which  the  valid  and  invalid  parts  are  inseparable."  Tims 
a  statute  annnlling  grants  of  land  held  adversely  by  another, 
and  one  making  their  acceptance  a  misdemeanor,  were  held 
not  to  a))i)ly  to  the  entire  insti'ument  containing  the  grant  of 
«nch  land,  nor  to  invalidate  the  grant  of  other  land  in  the 
same  conveyance,  but  onlj'  to  affect  such  portions  thereof 
and  such  grants  therein  as  were  in  violation  of  such  stat- 
ntes."^]  On  the  same  principle,  a  by-law  which  is  partly 
good  and  partly  bad  is  valid  as  to  the  former  part,  if  the 
latter  is  distinct  and  separable  from  it  («)  ;  and  orders  of 
justices  and  of  other  authorities,  and  the  awards  of  arbitra- 
tors are  similarly  treated  (h). 

^  -i*)l.  Effect  of  Statute  Rendering  Performance  of  Contract 
Illegal,  etc.— Where  a  Statute  compels  a  breach  of  a  private 
contract,  [7.  e.,  where  its  performance  is  rendered  illegal  by 
the  enactment,  the  obligation  is  discliarged,"^  and]  the  contract 
is  impliedly  repealed  by  the  Act,  so  far  as  the  latter  extends,"* 
or  the  breach  is  excused,  or  is  considered  as  not  falling  within 
the  contract  (c).  The  intervention  of  the  Legislature,  in 
altering  the  situation  of  the  contracting  parties,  is  analogous 
to  a  convulsion  of  nature,  against  which  they,  no  doubt,  may 
provide  ;  but  if  they  have  not  provided,  it  is  generally  to  be 
considered  as  excepted  out  of  the  contract  (d).     Thus,  where 


«'  Towle  V.  Sinitli,  2  Robt.  (N.  Y.) 
489. 

«2  Towlev.  Smith,  2  Robt.  (N.  Y.) 
489.  A  trust  is  not  invalid  if  made 
to  defeat  tlie  colhittMal  inheritance 
tux;  it  is  simply  this  intention  that 
is  to  be  frustrated  :  Tritlv.  Crotzer, 
13  Pa.  St.  450. 

(a)  R.  V.  Faversham.  8  T.  R. 
?,o2,  2  Kyd,  Corp.  155;  R.  v. 
Lundie,  'dl  L.  J.  M.  C.  157,  per 
<^uain,  J.,  in  Mall  v.  Nixon,  10 
Q.  B.  152  ;  ])er  Bayley,  J.,  in 
Clark  V.  Denton,  1  B.  &  Ad.  95  ; 
Brown  v.  Holyhead,  1  II.  &C.  GOl, 
433  L.  .1.  25.  [Laws  organizing 
municipal  governments  being 
designed  for  the  preservation  of 
public  order,  contracts  in  violation 
of  such  laws  are  void  :  Louisiana 
State  B'k  v.  Xav.  Co.,  ;{  La.  An. 
1294.] 

(b)  R.  V.  Stoke  Bliss,  6  Q.  B.  158; 
H.  V.  O.vlev.  Id.  250  ;  R.  v.  Robin- 


sou,  17  Q.  B.  4G6  ;  R.  v.  Green,  2 
L.  :\L  i!c  P.  130  ;  lie  Goddard.  1  L. 
jNL  A:  P.  25. 

«3  Browm  v.  Dillahunty,  12  Miss. 
713  ;  and  see  Hampton  v.  Com'th, 
19  Pa.  St.  329.  infra. 

"^  A  law  laying  an  embargo,  eveu 
for  an  unlimited  time,  does  not 
extend  to  the  extinguishment  of  a 
contract  with  whose  present  i^er- 
formance  it  interferes,  but  operates 
only  as  a  suspension  of  it  until  the 
law*  is  repealed  :  Baylies  v.  Fetty- 
place,  7  Mass.  325. 

{r)  Per  cur.  in  Brewster  v.  Kit- 
chell,  1  Salk.  198. 

(d)  Per  Pollock,  C.  B.,  in  Oswald 
v.  Berwick,  3  E.  &  B.  G.53,  23  L.  J. 
331.  [In  Hampton  v.  Com'lh,  19 
Pa.  St.  3"29,  prncettdings  had  been 
taken  under  an  act  of  assembly  to 
open  a  street,  the  act  providing  for 
theassessmenl  of  damagessustained 
by  property  holders  upon   lols  of 


§  462] 


ILLEGAL  CONTRACTS. 


(i.VJ 


land  was  leased  to  certain  persons,  who  covenanted  to  bnild 
a  workhouse  on  it,  and  not  to  use  the  house  or  land  for  any 
other  purpose  than  the  support  of  the  poor  of  tlie  parish  ; 
and  the  Poor  Law  Commissioners,  under  the  4  &  5  Wni.  4, 
c.  76.  incorporated  the  parish  in  a  Union,  and  removed  the 
jxiupers  to  the  union  workhouse,  whereupon  the  house  was 
shut  up  and  the  land  was  let  at  a  rack  rent,  wliieh  was 
applied  in  aid  of  the  rates  ;  it  was  held  that  the  covenant 
had  not  been  broken,  or  that  the  breach  was  excused  by 
legislative  compulsion  (a).  [And  so,  where  the  right  of  bail 
for  a  defendant  taken  under  a  capias  ad  satisfaciendum  to 
surrender  the  principal  in  discharge  of  his  liability,  is 
<;lestroyed  by  statute,  the  bail  is  discharged/^] 

§  462.  If  a  man  covenants  not  to  do  a  tiling  which  was 
unlawful  at  the  time  of  the  covenant,  and  an  Act  subsequently 
makes  it  lawful  only,  but  not  imperative,  to  do  it ;  the  cove- 
nant is  unaffected  by  the  Act  (b).  [But  if  he  agrees  not  to 
■do  a  thing,  which,  at  the  time  is  lawful,  and  a  subsequent 
statute  compels  him  to  do  it,  the  agreement  is  repealed."* 
Thus]  where  a  lessee  covenanted,  for  himself  and  his 
"  assigns,"  that  he  would  not  ])uild  on  the  demised  premises  ; 


others  benefited  and  giving  a  pro- 
ceeding for  the  enforcement.  Be- 
fore completion  of  tliis  proceeding, 
the  act  was  repealed.  It  was 
contended  that  the  right  of  the 
property  holders  to  the  damages 
assessed  could  not  be  affected, 
being  in  the  nature  of  contract 
rights.  This  was  denied  by  the 
court  :  "  But,"  says  Black,  C.  J., 
"assume  it  to  be  a  contract.  Let 
it  be  supposed  that  the  plaintiff  in 
error  covenanted  to  pay  a  certain 
sum  in  consideration  of  the  addi- 
tional value  which  would  begiven  to 
his  lots.  It  the  street  is  not  opened 
the  consideration  fails,  and  then 
what  becomes  of  the  contract  ? 
Equity  will  always  relieve  against 
a  contract  when  a?i  tinforeseen 
accident,  such  as  the  interference  of 
the  Legislature,  has  rendered  it 
impossible  for  both  parties  to  per- 
form it.  It  will  scarcely  be  said 
that  a  contract,  the  executiim  of 
which  is  forbidden  by  equity  and 
good  conscience,  is  witljiu  the 
iidiibition  ol  the  constitution.    Tlie 


obligation  of  such  a  contract  could 
not  be  impaired;  for  it  has  no 
obligation:"  ubi  supra,  p.  334. J 

(«)  Doe  V.  Rugeley,  G  Q.  B.  107. 
See  D.  of  Devonshire  v.  Barrow,  8 
Q.  B.  D.  286. 

•^5  Brown  v.  Dillahunly,  13  Miss. 
713.  In  Union  Locks  &  Canals  v. 
Towne,  1  N.  H.  44,  it  was  held, 
that  one  who  became  a  proprietor 
in  a  company  was  discharged  from 
his  contract  and  liability  to  subse- 
quent assessments  by  a  subsequent 
statute,  passed  upon  petition  of  the 
coiporation  without  his  assent, 
authorizing  it  to  hold  a  greater 
amount  of  real  estate,  the  subscrip- 
tion being  treated  as  a  contract  in 
which  no  valid  change  could  be 
made  without  the  assent  of  all  the 
parties. 

{b)  Per  cur.  in  Brewster  v. 
Kitchell,  1  Salk.  198.  [Brick  Pres. 
Ch.  V.  New  York,  5  Cow.  (N.  Y.) 
538.] 

^'^  Brick  Pres.  Ch.  v.  New  York, 
supra. 


000  ILLEGAL    CONTKACTS.  [§  4:Ga- 

and  lie  was  afterwards  compelled,  under  an  Act  of  Parlia- 
n)ent,  to  sell  the  land  to  a  railway  company,  who  built  on  it ;. 
it  was  held  that  the  company  was  not  an  "assign"  within 
the  meaning  of  the  covenant.  The  Legislature,  it  was  con- 
sidered, had,  in  compelling  the  sale,  created  a  kind  of  assigU' 
not  contemplated  by  either  lessor  or  lessee  when  the  contract 
was  entered  into  :  and  so,  the  lessee  could  not  justly  be  held 
responsible  for  the  acts  of  such  an  assign.  It  was  not  reason- 
able to  imi)Utotothe  Legishiture  the  intention  that  he  should 
remain  liable  for  the  non-performance  of  that  which  it  had,, 
itself,  prevented  him  from  performing  (a). 

§  463.  S'atuie  ImpUes  Means  of  Enforcement.— When  a  statutfr 
creates  a  new  obligation,  or  makes  unlawful  that  which  was 
lawful  before,  a  corresponding  right  is  thereby  impliedly 
given,  either  to  the  public,  or  to  the  individual  injured  by 
the  breach  of  the  enactment ;  and  sometimes  to  both. 
["  The  general  rule  as  to  the  way  in  which  the  authority  of 
statutes  may  be  enforced  directly  is,  that  whenever  a  statute 
orders  a  thing  to  be  done,  or  forbids  the  doing  of  anything, 
an  indictment  I'es  for  the  omission  of  the  one  or  the  commis- 
sion of  the  other,  and  an  action  also  lies  at  the  suit  of  any 
person  who  has  sustained  injury  from  such  omission  or  com- 
mission."" "What  the  law  says  shall  not  be  done  it  becomes- 
illeo-al  to  do,  and  is  therefore  the  subject  matter  of  an  indict- 
ment without  the  i^ddition  of  any  corrupt  motives."""  "  In 
every  case  where  a  statute  prohibits  anything  and  doth  not 
limit  a  penalty,  the  party  offending  therein  may  be  indicted 
as  for  a  contempt  against  the  statute."'*  "  Whenever  an 
Act  of  Parliament  doth  prohibit  anything,  the  party  grieved 
shall  have  an  action,  and  the  offender  shall  be  punished  at 
the  Kino-'s  suit."'"  ''  It  is  written  on  the  horn-book  of  the 
law,  that  the  public  and  a  purty  paiticularly  aggrieved,  may 

(a)  Biiily  V.  Dc  Cre,spign3^  T..  R.  an   ;K;t,    etc.,    uulawfiil,   sec   post, 

4  O.  B.   180.     See,  also,  Wiidham  g  488.  | 

V   P  M.  Genl.,  L.  R.  6  Q.  B.  644  ;  «^  Wilb.,  Stat.  L.,  pp.  69-70. 

Brown  v.  Mayor  of  Loudon,  9  C.  «» lb.,  cit.  R.  v.  Sainsbury.  4  T. 

B   N    S    726,  30  L.  J.  225  ;  New-  R,  at  p.  457,  per  Ashhurst,  J 

in-lon  V.  Colliugham,  12  Cb.   D.  ^^  Cit.    Crowther's     Case,    Cro. 

725,  48  L.  J.  226.     [As  to  the  effect  Eliz.,  at  p.  655. 

of  the  repeal  of  a  statute  making  ''^  2  Inst.  163. 


§§  4:64:,  4G5]  IMPLIED  EEMKDIES.  061 

eacli  have  a  distinct  but  concurrent  remedy  for  an  act  which 
happens  to  be  botli  a  public  and  a  private  wrong.""] 

§  404.  Implied  Remedies  where  Act  Prohibits  or  Commands 
something  Public. — If  a  statute  prohibits  a  matter  of  public 
gi-ievance  (a),  or  commands  a  matter  of  public  convenience  {h), 
all  acts  and  omissions  contrary  to  its  injunctions  are  mis- 
demeanors; and  if  it  omits  to  provide  any  procedure  or 
punishment  for  such  act  or  default,  the  common  law  method 
of  redress  is  impliedly  given  ;  that  is,  the  procedure  by 
indictment,  and  punishment  by  line  and  imprisonment  (c). 
But  the  matter  must  be  strictly  of  public  concern.  If  the 
statute  extends  only  to  particular  persons,  or  to  matters  of  a 
private  nature,  as  those  I'elating  to  distresses  by  lords  on  their 
tenants,  disobedience  would  not  be  indictable  {d).  Where 
the  burden  of  repairing  a  private  road  for  the  use  of  tlie 
■owners  and  occupiers  of  tenements  in  nine  parishes,  was 
thrown  upon  the  owners  and  occupiers  in  six  of  those 
parishes ;  the  latter  were  held  not  indictable  for  the  non- 
repair of  the  road,  because  the  duty  did  not  concern  the 
.public,  but  only  the  individuals  who  had  a  right  to  use  the 
private  road  {e).  [But  for  neglect  or  refusal  on  the  part  of 
township  supervisors  to  open  or  repair  a  public  highway,  a 
part  of  their  official  duty  as  public  functionaries,  an  indict- 
ment will  lie."] 

§  465.  Statute  Creating  Obligation  and  Giving  Remedy  in  Same 
Section.—If  the  statute  which  creates  the  obligation,  whether 
private  or  public,  provides  in  the  same  section  or  passage  a 
specific  means  or  procedure  for  enforcing  it,  no  other  course 
than  that  thus  provided  can  be   resorted   to  for  that  pur- 

"  Foster  v.   Com'th,  8  Watts  &  tion  is  punishable  according  to  the 

S.  77,  79,  per  Gibson.  C.  J.  course  of  the  common  law  :  State 

(a)  R.  V.  Sainsbuiy,  4  T.  R.  445-  v.  Parker,  91  N.  C.  650  1 

(l))  R.  V.  Davis,  Say.  133  ;   R.  v.  (d)  2  Hawk.,  ubi  supra. 

Price,  11  A.  &  E.  427.  (e)  R.  v.    Richards,  8  T.  R.   634. 

(c)  2  Hawk.  c.  25.  s.  4  ;  and  see  Set',    also,    R.    v.    Storr,  8  Burr 

the  cases  collected   in  Burn's,  J.,  1699,     and    R.    v.     Atkins      Id 

OfBce   n.       [Colburn  v.   Swctt,   1  1706. 

Met.  (Mass.)  232  ;  Elder  v.  Bemis,  «  Graffins  v.   Com'th,  3  Pen    & 

2  Id.    599;  Gearhart  v.    Dixon,  I  W.  (Pa.)  502  ;  Edge  v.  Com'th    7 

Pa.  St.   224;    Si  ate  v.  Fletcher,  5  Pa.  St.  275  ;  Phillips  v.  Com'lh,'44 

N.    II.   257.     So,  where   a  statute  Id.    197;  Com'th  v.  Reiter  78  Id 

makes   an   act     "  unlawful,"    but  161  ;  Oakland  Tp.  v.   Martin    104 

specifies  no  prooeedujg,  its  viola-  Id.  303.     See  post,  §  467 


G02  IMl'I.lKD  REMEDIES.  [§  •!()() 

pose  (a).  Thui5,  where  the  land  tax  rcdeiiiptioii  Act  directed 
that  the  tax  sl)oiild  be  added  to  tlie  rent  in  all  future  bishops^ 
leases,  and  should  be  recoveiablo  in  the  same  way  as  the 
rent,  it  was  held  not  recoverable  b}'  any  other  means  (b). 
A  breach  of  the  5  &  0  Ed.  0,  c.  25,  which  enacted  that  no 
person  should  keep  an  ale-iiouse,  but  such  who  should  l)e 
admitted  thereunto  and  allowed  in  open  sessions,  or  by  two 
justities,  under  the  penalty  of  summary  commitment  by 
justices  for  three  days,  was  not  subject  to  prosecution  by 
indictment  (c).  The  21  Hen.  8,  c.  13,  iiaving  enacted  that 
no  spiritual  person  should  take  lands  to  farm,  on  pain  of 
forfeiting  ten  pounds,  it  was  held  that  an  offender  could  not 
be  indicted  for  a  breach  of  this  enactment,  but  could  only  be 
sued  for  the  penalty  {d).  Where  an  Act  which,  requiring 
shareholders  to  pay  calls  on  their  shares,  provided  that  in 
case  of  default  the  company  might  sue  them  in  the  courts  in 
Dublin ;  it  was  held  that  an  action  would  not  lie  in 
England  {e). 

§  460.  statute  Creating  Obligation  to  Pay  Money. — If  the 
newly-created  duty  is  simply  an  obligation  to  pay  money  for 
a  public  purpose,  the  general  rule  would  seen)  to  be  that  the 
payment  cannot  be  enforced  in  any  other  manner  than  that 
provided  by  the  Act;  though  the  provision  be  not  contained, 
as  in  the  above  cases,  in  the  same  section  as  that  in  which, 
the  duty  was  created.  Thus,  the  43  Eliz.  c.  2,  which 
authorizes,  by  the  second  section,  the  imposition  of  a  poor- 
rate,  and  empowers  the  parochial  oflicers,  by  the  fourth,  to 
levy  the  arrears  from  those  who  refuse  to  pay,  by  distress, 

(a)  [See  post,  ^  467.]     This  does  R.    v.    Clear,   4    B.    «fe    C.    899- 

iiot  apply  to  ilie  equitable   remedy  See.  also,  Liclitiekl  v.   Simpson,  S 

by  itipaiction.    See,  ex.  gr.  Cooper  Q.  B.  65. 

V.  Wbitliiigbam.    15  Ch.   D.    501  ;  (A)  Doe  v.   Bridges,  1   B.  &  Ad. 

Atty.-Geiil.   V.   Basiiigsloke,  45  L.  859.        Comp.     Scotch      Widows' 

J.  Ch.  720.       I  See,  also.  People  v.  Fund  v.  C^iMJg,  51   L.   J.   Cii.  363  ; 

Vanderbilt,   24  How.    Pr.   (N.  Y.)  and  see  Cumiiiing  v.  Bedboroiigh, 

301 ;  and  ante,  i^§  151,  154.     But  15  M.  &  W.  A:  S. 

comp.  t^  474.      Where  cliiHchwa id-  (c)  11.   v.  Maniot,  4  Mod.   144; 

ens  refused  to  allow  an  inspection  K.  v.  Bin  k,  2  Sira.  679. 

of  their  accounts,  the  Couit  would  (d)  2    Hale,    P.    C,    171;   R.  v. 

not  refuse  a  mandamus  to  enforce  Wright,  1  Burr.   544  ;  and  see  per 

the   performance  of  thai    duty,   if  cur.    in      Couch     v.     Steel,    3    E. 

advisable  on   public  gmunds,  only  &B.  403. 

because  a  pecuniary  i)enaliy,  appli-  (c)   DundalkR.  Co.  v.  Tapster,  t 

cable  to  the  u.se  of  the  poor  ot   the  Q.  B.  667. 
parish,  was  imposed  for  the  refusal: 


§  406]  nii'LiKi)  ki:mi;i)iks.  663 

limits  the  officers  to  tliis  remedy,  and  gives  no  rij^lit  of  action 
for  a  poor-rate  {a).  Similar! 3%  where  highway  rates  were  made 
pa;/able  under  a  statute  which  prescribed  a  ]mrticnlar  pro- 
cedure for  their  recovery,  it  was  held  that  that  method  only 
could  be  pursued,  and  that  no  action  lay  (h).  It  is,  however, 
a  general  rule,  tliat  whore  an  Act  of  Parliament  creates  an 
t)bligation  to  pay  money,  tiie  njoney  may  be  recovered  by 
action,  unless  some  provision  to  the  contrary  is  contained 
in  the  Act  (c),  that  is,  unless  an  exclusive  remedy  be 
given  {d)  ;  and  the  question  may  arise  whether  the  particular 
j-emedy  given  by  the  Act  is  cumulative  or  substitutional  for 
this  right  of  action.  Where  a  harbor  Act  required  the  master 
of  a  ship  to  pay  certain  duties  to  the  trustees  of  the  harbor  ; 
and  besides  empowering  the  latter  to  distrain  for  them, 
enacted  that  any  master  who  eluded  payment  should  stand 
liable  to  the  payment  of  them,  and  that  they  should  be  levied 
in  the  same  manner  as  penalties  were  directed  by  the  Act  to 
be  levied  (that  is,  by  action  or  distress)  ;  it  was  held  that 
the  latter  remedy  Vv^as  cumulative,  and  that  as  the  Act  had 
made  the  master  liable  to  pay  the  dues,  an  action  lay  for 
them  {e).  This  decision  is  said  to  have  been  based  on  the 
ground  that  the  particular  remedy  given  by  the  Act  did  not 
cover  the  whole  right  (/'),  [thus  falling  within  the  rule  that 
a  common  law  remedy  is  not  superseded  by  a  statutory 
remedy  covering  only  part  of  the  right."  A  familiar  instance 
of  the  application  of  this  principle  is  in  the  case  of  certain 
corporations  whose  charters  require  their  members  to  pa}'' 
certain  periodical  dues,  and,  in  order  to  secure  the  perform- 
ance of  this  duty,  give  the  company  a  lien  upon  the  defaulting 
member's  stock,  or  authorize  the  imposition  of   fines   and 

(a)   Stevens  v.    Evuns,    2  Burr.  Q.  B.  D.  264. 

1152,  %->er  Denison,  J.  {d)  Per  Martin,  B.,  in  Hutchin- 

{b)    Underliill       v.      Ellicombe,  sou  v.  Gillespie,  25  L.  J.   Ex.  109  ; 

McClel.   &    Yo.    450.     See,    also,  R.    v.   Hull  &  Selby  R.  Co.,  6  Q. 

London    &    Brighton    R.    Co.    v.  B.  70. 

Watson,  4  C.  P.  D.  118  ;  and  sup.  (c)  Shepherd  v.  Hills,  ubi  sup. 

§§  151,  et  seq.  (/)    Per   Williams,    J.,     in    St. 

"(c)  Per  ParUe,  B.,  in  Shepherd  v.  Pancias  v.  Batterbury,  2  C.  B.   N. 

Hills,  11  E.\.  55,  25  L.  J.   0.      Sec  S.  477.  26  L.  J.  M.  C.  246. 

e.x.  gr.    Stemsoii  v.  Heath,  8  Lev.  "  Gibbes  v.  Beaufort,  20   S.  C. 

400;  Pelhani  v.  Pickersgill,  1  T.  213.       See,    also,    Salem    Turnp., 

R.  061;   Maurice  v.  Marsden,   19  etc.,  Co.  v.  Hayes,  5  Cush.  (Mass.) 

L.  J.  C.  P.   152  ;  Bult  v.  Price,  1  458. 


■GG4  TMPr.ii;i)  ickmkdiks.  [§  466 

forfeitnres,  or  both.  In  siicli  cnso,  ;i  eoiiiinou  law  action  lies 
for  the  recovery  of  t\n'.  dues  l»y  the  association  whenever 
they  beconje  payable  ;''  for  a  penalty  which  has  for  its  end 
the  insurance  of  the  performance  of  the  principal  obligation, 
does  not  destroy  the  latter."  So,  where  the  act  incorpor- 
ating a  company,  the  subscribers  to  whose  stock  signed  an 
tigreement  to  pay  a  certain  amount  per  share  as  the  same 
should  be  called  for,  authorized  the  managers  to  call  for 
payments,  and  inflicted  a  penalty  of  live  per  cent,  per  month 
upon  defaulters,  with  the  additional  provision,  that,  when 
the  penalty  should  amount  to  the  sums  paid  in,  the  share 
should  be  forfeited  to  the  company,  it  was  held  that  the 
latter  might  waive  the  forfeiture  and  proceed  upon  the 
personal  obligation  assumed  by  the  subscriber  to  the  agree- 
ment referred  to.'"  Again,  where  an  act  provided  that  the 
stocklioldcrs  of  certain  corporations  should  be  liable,  in  tlieir 
individual  capacities,  to  the  amount  of  the  stock  held  by 
each,  for  all  work  or  labor  done  to  carry  on  the  operations 
of  the  company,  it  was  held,  that,  whilst  tliis  individual 
liability,  being  of  a  purely  statutory  character  and  having  no 
existence  outside  of  the  legislation,  must  be  enforced,  when- 
ever invoked,  in  the  precise  manner  prescribed  by  the 
statute,"  it  was  not  the  sole  liability  which  the  creditors  of 
an  insolvent  corporation  might  enforce  for  the  satisfaction  of 
their  claims  ;  that  they  might  also,  by  appropriate  process, 
enforce  for  their  beneflt  the  liability  existing  on  the  part  of 
the  stockholders  to  the  corporation  to  pay  uncalled  and 
unpaid  subscriptions  to  capital  stock  ;  and  that,  consequently, 
a  bill  in  equity  would  lie  at  the  instance  of  creditors  of  such 
a  corporation  to  collect  such  part  of  the  unpaid  and  uncalled 
subscriptions  as  was  necessary  for  the  satisfaction  of  their 

''*  See  BuilcVg  Ass'n  v.   Kril)s,  7  Franks  Oil  Co.  v.  McClcary,  63  Id. 

Leg.  &  Ins.  Kep.  (Pa.)  21  ;   JVIoni-  317  ;   Messersmith  v.  Bank,  96  Id. 

son,  Receiver,   etc.  v.   Dorsey,  48  440;  II  irlt'ord,  etc..  R.  R.  Co.  v. 

Md.  461.  Kennedy,  V2  Couu.  409;  Carson  v. 

"  D.  &  S.   Canal   Nav.    Co.  v.  Min'g  Co..  5  Mich.  288. 

Sansom.  1  Binn.  (Pa.)  69.  "  Patterson  v.  Lane.  85  Pa.  St. 

'^  Ibid.  ;   and  see.  as  recognizing  275  ;  Hoard  v.  Wdcox.  47  Id.  51  ; 

Ihis  i)rinciple  :    Palmer  v.  Minint^  Yoimliioi>henv  Shaft  Co.  v.  Evans, 

<:<).,    34   Pa.    St.    288;    Merriniac  72  Id.  331;   Means'   App.,  85  Id. 

Min'g  Co.    V.   Levy,    54   Id.  227  ;  75  ;  ante,  §  351. 


•§  467j  IMPLIED  UKMKDIKS.  ()(),"i 

claims."]  But  wliere  a  by-law  required  a  traveler  witliout 
a  ticket  to  pay  the  fare  from  the  station  whence  the  train 
first  started  to  the  end  of  his  journey,  and,  by  8  Yict.  c.  20, 
sect.  145,  penalties  or  forfeitures  imposed  by  the  by-laws 
were  recoverable  before  justices ;  it  was  held  that  the  by- 
law did  not  create  a  debt  recoverable  in  a  Court  of  civil 
jurisdiction  («).  [And  where  a  statute  against  usury,  besides 
empowering  the  debtor  to  make  certain  deductions  on  account 
of  the  usury  paid  by  him,  gave  him  an  action  of  debt  against 
the  creditor,  and  imposed  upon  the  latter  the  liability  to 
pay  a  sum  equal  to  thi-ee  times  the  amount  of  the  usury  paid, 
it  was  held  that  a  party  who  had  paid  usury  could  not  recover 
the  excess  over  the  legal  percentage  in  an  action  of 
assumpsit  for  money  had  and  received,  but  that  the  remedy 
was  exclusivel}^  under  the  statute.'"] 

§  467.  Statute  Creating  Public  Duty  and  Giving  Remedy,  in 
Different  Sections. — If  the  statute  creates  the  public  duty  in 
one  section,  and  provides  a  procedure  for  the  enforcement 
of  it,  or  the  punishment  for  its  breach,  in  a  separate  section,*" 
or  if  the  duty  to  which  the  new  procedure  applies,  already 
existed  before  the  Act  (b),  the  olfence  is  usually  subject  to 
the  common  law  procedure  and  punishment,  as  well  as  to 
the  special  procedure  so  given.  Thus,  under  the  10  &  11 
Wm.  3,  c.  17,  which  declared,  in  the  first  section,  that  keep- 
ing a  lottery  was  a  public  nuisance,  and,  by  the  second, 
made  the  keeper  of  one  liable  to  a  penalty  recoverable  by 
penal  action,  it  was  held  that  the  offender  was  also  indictable 
(c).  The  6  &  7  Vict.  c.  73  having  enacted,  in  one  section, 
that  no  person  should  act  as  an  attorney  who  was  not  duly 
admitted  and  enrolled  ;  and  in  another,  that  a  breach  of  this 
prohibition  should  be  deemed  a  contempt  of  Court;  it  \vas 
held  that  the  offence  was  also  indictable  {d)  [So,  w-here  an 
act  by  its  90th  section  imposed  upon  the  su])ervisors  of  town- 
ships all  the  duties  imposed  by  law  on  the  supervisors  of 
public  highways,   and    declared    them  subject  to  the  same 

"  Lane's  App.,  105  Pa.  St.  49.  (b)  See  sup.    §§  235,  236.     R.  v. 

(a)  London  &  Brigliton  E.  Co.  V.  Davis,  Say.  163;   li.    v.  Gould,    1 

Watson,  4  C.  P.  D.  118.  Saik.  381. 

"   Crosby  v.    Bennett,    7    Met  (c)  R.    v.    Crawsliaw,   Bell,  303, 

(Mass.)  17.  30  L.  J.  M.  C.  58. 

^0  See  ante,  §  465.  (d)  R.  v.  Buchanan.  8  Q.  B.  883. 


GGG  IMTLlKb    UKMKDIES.  [§  40S 

responsibilities,  and  l)y  its  92ncl  section  provided,  that,  if 
any  snpervisor  should  ne<;-lect  to  perform  any  duty  required 
of  him  l)y  law,  he  should  forfeit  a  certain  sum  to  be  recovered 
snmmai'ily  by  action  of  debt  in  the  name  of  the  common- 
wealth, it  was  held  that  an  indictment  lay  for  a  refusal  or 
nci^Iect  to  repair. "'J  So,  where  a  statute  prohibited  the 
erection  or  maintenance  of  a  building  within  ten  feet  of  a 
road,  declariiii^  such  an  erection  a  common  nuisance  ;  and, 
in  another  section,  authorized  two  justices  to  convict  the 
propi'ietor,  and  to  remove  the  structure;  it  was  held  that  an 
indictment,  also,  lay  for  the  nuisance  (a). 

^  408.  Same  Rule  as  to  Private  Duties.— The  same  principle 
a  Implies  when  the  duty  is  a  ])rivate  one.  Thus,  the  11  Geo. 
2,  c.  19,  which,  after  authorizin<^  landlords,  by  section  1,  to 
seize  the  goods  of  their  tenants,  when  fraudulently  and 
clandestinely  removed  to  elude  a  distress,  gives  them,  by 
section  4,  a  summary  remedy  before  justices,  for  recovering 
double  the  value  of  the  goods  removed,  against  tho  tenant, 
or  any  person  who  assisted  him,  was  held  to  give  them  also, 
by  implication,  the  right  of  suing  for  damages  for  the 
fraudulent  or  clandestine  removal  {b).  [But,  where  the  first 
section  of  an  act  punished  larceny  by  tine,  etc.,  the  third 
gave  the  owner  of  the  goods  the  right  to  treble  the  value  of 
the  goods  at  the  hands  of  the  offender,  and  in  case  of  his 
inability  to  pay,  authorized  the  court  to  sentence  him  to 
make  satisfaction  by  service  to  the  owner,  who  might 
thereui')on  sell  him  in  service  ;  and  the  tenth  section  pro- 
vided, that,  unless  the  owner  do  so  in  thirty  days,  or  give  the 
gaoler  security  to  pay  the  charges  of  keeping  the  prisoner, 
the  gaoler  might  set  him  at  libert}',  it  was  held,  that,  in 
such    case,  the    owner    had    no    remedy  by  action    of    debt 

8' Edge  V.  Cnm'tli,  7  Pa.  St.  275.  53,1.       [See,      to     siniil:ir     effect, 

It  is  proper  to  observe,  however,  Reiiwick  v.  ^Iorri.s,  3  Hill  (N.  Y.) 

that,  in  Ihe   decision,  the    ninety-  ()21  ;  7  Id.  57r).] 

second  section   was    lield   to   refer  (6)  Bromley   v.    Ilolden,  Moo.  & 

more  purticulaily  to  laiiure  lo  per-  M.  175  ;  llorsfall  v.  Davy,  1  Slark. 

form  the  other  duties   imposecl  by  1G9  ;  Stanley    v.    Wharton,   1)  Pri. 

the  act,  those  of  overseers  of  the  301,  10  Pii.  138.     See,  also,  Collin- 

poor,  and  to  be  designed  for  the  son  v.  Newcastle  R.  Co.,  1  (.\  &  K. 

benefit  of  individnals.     As  to  lia-  540  ;  Ross  v.   Price,  1  Ex.   D.  269, 

biiity  of  sujiervisors  to  indictment,  45  L.  J.  E.\.  777;  and  the  casescol- 

sec  ante,  ^  404.  i((;te(l   in   the   note    to    Ashby    v.. 

(rt)R.    V.    Gregory,   5  B.  <k  Ad.  White,  1   Sin.  L.  C.  *342. 


§  409]  IMPLIED  REMEDIES.  6GT 

against  the  offender  after  being  so  set  free/'^  Aiid  in  tin's 
connection  may  be  cited  the  rule,  that,  where  astatnte  creates 
a  right  and  limits  the  time  for  bringing  an  action  npon  ir,  if 
the  limitation  is  suffered  to  expire  without  any  action,  the 
right  itself  is  gone,  and  cannot  be  revived  by  being  claimed 
in  another  proceeding.  Thus,  where  an  act  authorized  an 
unluck}^  gambler  to  recover  back  the  money  lost  by  him,  if 
suit  be  brought  in  ten  days,  it  being  express!)'  provided  that 
the  suit  shall  be  founded  on  the  act  and  the  recovery  be 
according  to  the  form  of  the  act,  thus  showing  that  it  did 
not  proceed  upon  the  principle  of  compensating  an  injured 
party  in  damages,  if  the  time  be  allowed  to  slip  by,  the  right 
given  by  the  act  was  gone  entirely  and  could  not  be  asserted, 
e.  g.,  upon  distribution  of  the  proceeds  of  a  forfeited  bond 
which  had  been  given  by  the  keeper  of  the  gambling  house 
for  appearance  in  court,  upon  being  prosecuted.*' 

§  469.  Where  Third  Parties  Interested  in  Duties  or  Prohibitions. 
— When  a  statute,  for  the  benefit  of  particular  individuals, 
imposes  a  ministerial,  as  distinguished  from  a  judicial  duty,, 
[or  prohibits  the  doing  of  a  thing,]  any  of  those  individuals, 
if  directly  injured  by  the  breach  of  the  duty  [or  prohibition,] 
has  impliedly  a  right  to  recover,  from  the  person  on  whom 
the  duty  is  cast  [or  the  prohibition  imposed,]  satisfaction  for 
the  injury  done  to  him  contrary  to  the  statute  (a),  unless,  of 
course,  a  different  intention  is  to  be  collected  from  the  Act ; 
[and  if  the  statute  points  out  no  specific  remedy,  a  remedy 
may  be  drawn  from  the  common  law.**  Thus,  where  a 
statute  imposes  upon  house-owners  the  absolute  duty  of  pro- 
viding fire-escapes,  any  person  damnified  by  a  non-perform- 
ance thereof  may  maintain  an  action  therefor.*'^]  An  incor- 
porated vestry  which  refused  to  perform  the  statutory  duty 
of  removing  dirt  and  ashes,  was  held  liable  in  an  action  by 
the  party  aggrieved,  for  the  expenses  incurred  from  the 
refusal  {h)      So,  an  unsuccessful  candidate  at  an  election  is 

8-2  Smith  V.  Drew.  5  Mass.  514.  411.     [Van  Hook    v.  Wliitlock,    2 

83  Com'th  V.   Robbins,  36  Pa.  St.  Edw.  (N.  Y.)  304.] 

165.  *^  Kueass  v.  Bank,  4  Wash.  106. 

(a)  2  Westmr.  13  Ed.    c.    50;  1  ^^  ^illy  v.    JNiulledy,  78  N.    Y. 

Inst.  56a  ;  Anon.,  6  Mod.  27  ;  per  310. 

cur.  in  Couch  v.  Steel,  3  E.   &  B.  ib)    Holborn       Union      v.      St.. 

Leonard's,  2  Q.  B.  D.  145. 


'•60S  IMPLIED    REMEDIES.  [§  469 

entitled  to  sue  the  returning  oflBcer  for  compensation,  if  the 
loss  of  the  election  was  owing  to  the  ofhccr's  neglect  of  the 
prescriptions  of  the  Ballot  Act  {a).  An  action  was  held 
maintainable  by  the  party  wronged  against  a  deput}''  post- 
master, for  not  delivering  a  letter  according  to  his  duty 
under  the  9  Anne,  c.  10  ;  though  he  was  also  liable,  under 
the  same  Act,  to  a  penalty  for  detaining  letters,  recoverable 
by  a  common  informer  (b).  Under  the  8  Anne,  c.  19,  wiiich 
gave  authors  the  sole  right  of  ]irinting  their  works  for  four- 
teen years,  and  provided  that  if  any  other  person  printed 
them  without  consent,  he  should  forfeit  the  printed  matter  to 
the  proprietor,  and  a  further  penny  for  every  sheet,  one  half 
to  the  Queen,  and  the  other  half  to  the  informer,  the  author 
was  entitled  to  sue  also  for  damages  (c).  If  a  railway  com- 
pany were  prohibited,  for  the  protection  of  the  owner  of  one 
ferry,  from  making  a  line  to  another  ferry,  an  action  would 
lie  for  breach  of  the  prohibition,  without  special  damage  {d). 
The  Companies  Act,  1867,  sect.  38,  which,  after  requiring 
that  every  prospectus  and  notice  of  a  joint-stock  company, 
inviting  persons  to  subscribe  for  shares,  shall  specif}'  the 
•dates  and  names  of  the  parties  to  conti-acts  entered  into  by 
the  company  or  its  promoters  before  the  issue  of  the  prospec- 
tus or  notice,  declares  that  every  prospectus  which  does  not 
comply  with  this  provision  shall  be  deemed  fraudulent  on 
the  part  of  those  who  knowingly  issued  it,  as  regards  those 
who  take  shares  on  the  faith  of  such  prospectus,  and  in 
ignorance  of  the  unmentioned  contract,  was  held  to  give  by 
implication  to  such  shareholders  a  cause  of  action  against 
every  such  issuer  of  the  prospectus  (e).  [It  is  immaterial, 
as  affecting  the  right  of  the  individual  to  sue  in  such  cases, 
that  the  dereliction  is  also  punishable  criminally.  Thus,  it 
is  said  that  every  breach  of  duty  by  a  public  officer,  whereby 
an  individual  is  specially  injured  will  subject  the  former  to 

(a)  35  &  36  Vict.  c.  33  ;  Pickering  ((Z)  Cluunberlaine  v.  Chester  R, 

V.  James,  L.  R.  8  C.  P.  489.     See,  Co.,  1  Ex.  870. 

also,  Fotherby  v.  jMetrop.  Pi.  Co.,  (r)  Cliailton  v.  Hay,  Q.  B.  M.  T. 

L.  R.  3  C.  P.  188.  1874,     31    Law    Times,    437.     See 

{b}  Rowning  v.   Goodchild,  2  ^V.  Gover's    Case,  1  Ch.    D.  182,  per 

Bl.  906.  .James,  L.  J.,  und  Bramwell.  L.  J. 

(c)  Bedford  v.    Hood,    7   T.    R.  ""^  ^Vo^•lv.  v.   Hoolnagle,  1  Yeates 

6'20.     See  Novello  V.   Sudlovv,    13  (Pa.)  a06. 
C.  B.  177. 


§  470]  IMPLIED    REMEDIES.  669-" 

an  action  f or  damafjes/'  So,  too,  "  a  person  beaten  may  prose- 
cute an  action  for  the  battery,  while  titc  commonwealtli 
prosecutes  an  indictment  for  the  breach  of  tin;  peact  ;  or  a 
nuisance  may  be  visited  by  indictment  as  a  public  wrong, 
while  it  is  visited  b}^  an  action  as  a  private  injury;  and  for 
reasons  equally  good,  a  libeller  may  be  punished  as  a  disturber- 
of  the  peace,  while  he  is  made  to  respond  in  damages  by  the 
person  libelled,  as  a  dcfamer  of  his  character.""  So,  where 
a  statute  prohibited,  under  penalties,  certain  injuries  to  a 
road,  as  breaking  down  the  gates,  or  digging  up  earth,  it  was 
held  not  to  bar  a  common  law  action  for  such  injur}'  or 
obstruction/*] 

^  4<0,  Non-Performance  of  New  Duty,  etc.  Penalty  Recover- 
able by  Aggrieved  Party. — If,  indeed,  tlie  non-performance  of 
the  new  duty  [or,  as  the  injunction  to  refrain  from  doing 
what  was  before  lawful,  is  equivalent  to  the  imposition  of  a 
new  duty,  the  commission  of  a  new  offence,]  is  made  by  the- 
Act  subject  to  a  pecuniary  penalty,  recoverable  only  by  the 
party  aggrieved,  the  inference  would  seem  to  be  that  this- 
penalty  was  intended  as  a  compensation  for  the  private 
injury,  as  well  as  a  punishment  for  the  public  wrong ;  and' 
there  would  be  no  other  remedy  for  either  the  one  or  the 
other  (a).  Thus,  where  an  Act  provided  that  if  one  fishing: 
boat  interfered  with  another  under  certain  circumstances,, 
the  party  interfering  should  forfeit  a  penalty  to  the  party 
interfered  with,  recoverable  summarily  before  justices,  to 
whom  powers  were  given  of  enforcing  their  decisions  by 
distress  and  imprisonment;  it  was  held  that  no  action  for 
special  damage  was  maintainable,  but  that  the  party  injured 
was  limited   to  the  remedy  given  by  the  statute  (l).     It   has 

^^  Foster  v.  Com'tb,  8  Watts  &  S.  although  a  penalty  or  forfeiture  be 

(Pa.)  77,  79.     See  ante,  §  463.  provided     by     statute  :     Rtimson, 

**»   Salem   Turnp.,    etc.,    Co.    v.  Amer.  Stat.,  p.  143.  §  1046. 
Hayes,  5  Cush.  (Mass.)  458.     But         (a)  Per  cur.  in  Couch  v.    Steel, 

this  was  partly  upon   the  ground  3  E.  &  B.  403.      See  Partridge  v. 

that  the  penalties    intlicted   were  Naylor,  Cro.  Eliz.  480,  sup.  §256  ; 

entirely  inadequate  as  a  compensa-  R.  V.  Hicks,  4  E.  &  B.  633,  "^24  L. 

tion.    "Comp.    ante,    ^    466.      The  J.  M.  C.  94. 

Ky.  Geu.    Stat's,    21,    24,  provide         (6)  Steveus  v.  Jeacocke,  11  Q.  B. 

that    any   person    injured    by  the  731.       [It  is  said,  Sedgwick,  p.  76. 

violation  of  a  statute  may  recover  and   see   Barden   v.     Crocker,     10 

from  the  offender  such  damages  as  Pick.  (Mass.)  383,    that,    where    a 

he   may   have   sustained    thereby,  statute  does  not  vest  a  right  in  it. 


•670  IMI'LIKD    KKMKDIKS.  [^  470 

been  observed,  indeed,  respecting  tliis  case,  tliiit  no  <lnty 
was  imposed  on  the  defendant  by  the  Act  ;  that  he  was  only 
])n>hibited,  under  a  ])enalty,  from  exercising  the  right  of 
lishing  to  the  extent  that  lie  had  it  at  common  law  ;  that  he 
was  not  bound  to  perform  any  particular  duty  created  by 
the  Act,  but  only  to  forbear  to  do  that  which,  but  for  the 
Act,  ho  might  have  done  (a).  But  it  may  bo  doubted 
whether  the  suggested  distinction  is  sul)stantial.  If  an  Act 
prohibited,  for  the  protection  of  particular  persons,  a  railway 
compau}'  from  making  a  line  in  a  certain  direction,  the 
company  would  seem  liable  to  an  action  by  those  persons 
for  damages  sustained  from  a  breach  of  the  enactment  {h). 
At  all  events,  the  only  duty  created,  if  any,  was  one  to  the 
party  injured  ;  and  as  the  Act,  in  expressly  creating  that 
duty,  also  provided  a  special  remedy  for  its  breach,  none 
other  was  to  be  implied.  [Possibly,  the  distinction  properly 
to  be  drawn  is  this,  that,  where  a  statute  gives  a  remedy, 
without  a  negative  expressed  or  implied,  for  a  matter  which 
was  actionable  at  common  law,  the  party  aggrieved  may  sue 
at  common  law  or  upon  the  statute  ;  but,  where  the  act  gives 
a  new  right,  one  that  did  not  exist  before,  e.  g.,  the  exclusive 
enjoyment  of  a  ferry,  and  prescribes  a  remedy  for  its 
infraction,  that  remedy  and  no  other  must  be  pursued/^ 
This  principle  was  applied  to  a  case  arising  under  an  act 
"  to  establish  an  independent  treasury  of  the  ^tate  of  Ohio," 
one  section  of  which  made  any  person  advising,  aiding,  or 
participating  in,  the  loaning  of  public  money,  with  the 
public  officei"  who  made  such  loan,  guilty  of  embezzlement, 
and,  on  conviction,  subject  to  imprisonment  and  to  a  tine  in 
double  the  amount  end)ezzled,  the  fine  being  given  the 
effect  of  a  judgment  in  favor  of  the  county,  etc.,  whose 
funds  were  so  embezzled,  collectible  like  other  judgments, 
and  capable  of  being  released  only  by  such  jiarty.     It  was 

jierson,    but  merel}'  prohibits  the  remedy   to   the   penull}'.     But  see 

doing  of  some  act  under  a  penalty,  cases  infra.] 

ihe  party  viohiting   tiie   statute  is  {n)  Per  car.  in   Coiieli   v.  Steel, 

liable    to    liie    iienalty  only  ;    but  13  E.  &  B.  4115. 

where  a  liglit  of  property  is  vested  {b)  Bee  Chamberlaine  v.  Chester 

in  consequence  of   the   statute,  it  R.  Co.,  1  \Z\.  870. 

may  be  vindicated  by  the  common  ^*    Almy    v.    Harris,    5    Johns. 

law    remedy   of  action,  unless  the  (N.  Y.)  175. 

statute    expressly      confines      the 


§  471]  IMPMED  remkdtp:5.  671 

held,  that,  as  the  offence  was  a  new  one ;  as  the  right  created 
in  favor  of  the  party  injured  as  ai^ainst  persons  advising, 
etc.,  tlie  misapplication  of  the  public  funds  was  a  new  one, 
not  previously  existing  at  common  law  ;  as  the  recognition 
of  a  right  of  civil  action  against  such  persons,  in  addition 
to  the  statutory  remedy,  would,  in  effect,  be  giving  the 
injured  party  treble  damages,  the  statutory  remedy  must  be 
deemed  exclusive  of  any  civil  action  based  upon  the  same 
offence.""] 

§  471.  Right  of  Action  Ijimited  to  Those  Directly  within  Gist  of 
Enactment. — The  right  of  action,  where  it  exists,  is  strictly 
limited  to  those  who  are  directly  and  immediately  within 
the  gist  of  the  enactment ;  [i.  e.,  the  violation  of  a  duty 
imposed  by  statute  for  the  benefit  or  protection  of  a  partic- 
ular class  of  persons,  cannot  be  made  the  foundation  of  an 
action  by  any  not  belonging  to  that  class."]  The  Contagious 
Diseases  Animals  Act,  for  example,  in  imposing  a  penalty  on 
those  who  send  animals  to  market  with  infectious  diseases, 
may  give  a  right  of  action  to  the  owner  of  an  animal  in  the 
market,  which  caught  the  disease  from  the  infected  animal 
■of  the  offender,  the  object  of  the  Act  being  to  protect  those 
who  expose  animals  for  sale  there  ;  but  it  would  not  give  a 
right  of  action  to  the  purchaser  of  the  diseased  animals 
which  had  been  wrongfully  exposed,  for  the  Act  did  not  ain^ 
at  the  protection  of  buyers  in  the  market  (a).  So,  an  Act 
which  requires  a  railway  company  to  fence  their  line,  maj' 
give  the  adjoining  landowner  an  action  for  a  breach  of  the 
enactment,  if  his  cattle  are  injured  by  getting  on  the  line  in 
consequence  ;  but  a  passenger  injured  by  an  accident  caused 
by  such  cattle  getting  on  the  line,  would  not  be  entitled  to 


^<>  Hancock  Co.  v.  Bank,  32  Ohio  »'   Jersey  City   Gaslight   Co.  v. 

St.  194,  citing  R.   v.   Kobinson,  2  Consumers'  Gas  Co.,  40  JN'.  J.  Eq. 

Burr.,    at  p.    803  ;   Livingstoue  v.  437.     See,  also,  as  to  liability  of  a 

Van  lugen,  9  Johns.  (N.  Y.)  507  ;  telegraph  company  under  a  statute, 

xVlmy   V.  Harris,  supra;    Andover  whetiier  to   sender  alone  or  other 

V.    Gould,    6   Mass.   41  ;   Bissel  v.  person  also:  West.  Un.  Tel.  Co.  v. 

Larned,    16    Id.     G5  ;    Camden    v.  Pendleton,  95  Ind.    12;  (Same)  v. 

Allen,  26  N.  J.   L.  398  ;    Shepard  Reed,  96  Id.  195  ;  (Same)   v.    Kin- 

V.  Comm'rs,  8  Ohio  St.  354  ;  State  ney,  106  Id.  468  ;  (Same)  v.  Steele, 

V.  Comm'rs,  26  Id.  369  ;   Lang  v.  108  Id.  163. 

Scott,  1  Blackf.  (Ind.) 405  ;  Victory  («)  Ward  v^.  Ilobbs,  3  Q.  B.  D. 

y.  Fitzpatrick,  9  Ind.  283.  150,  4  App.  13. 


G72  IMPLIED    KKMEDIES.  [§  -iT^" 

an  action  for  the  neglect  to  fence  {a).  [Nor  can  the  viohition 
by  a  gas  company  of  a  charter  requisition,  under  a  penalty, 
as  to  the  illuniiiuiting  power  and  purity  of  the  gas  permitted 
to  be  furnished  by  it,  be  made  the  ground  of  an  application 
by  a*  rival  gas  company  for  an  injunction  depriving  the 
former  of  the  right  to  exercise  its  franchise."'] 

§  472.  Former  Latitude  in  this  Respect.  Later  Rule. — The  gen- 
eral principle  was  formerly  considered  of  wnder  application  ; 
for  it  was  deemed  that  whenever  a  statutory  duty  was  created, 
any  person  who  could  show  that  he  had  sustained  an  iujury 
from  the  non-performance  of  it,  had  a  right  of  nction  for 
damages  against  the  person  on  whom  the  duty  was  imposed. 
Accordingly,  where  an  Act  required  the  owner  of  a  slii])  to 
keep  on  board  a  sufficient  supply  of  medicines,  under  a 
penalty  of  201.,  recoverable  at  the  suit  of  any  person,  and 
divisible  between  him  and  the  Seamen's  Hospital,  it  wns  Jield 
that  the  owner  was  liable  also  to  an  action  by  a  seaman,  for 
compensation  for  the  special  damage  which  he  had  sustained 
from  a  neglect  to  supply  the  ship  with  medicines,  as  required 
by  the  Act  (b).  But  this  proposition  cannot  be  now  regarded 
ys  law.  Whether  any  such  right  of  action  arises  by  implica- 
tion must  depend  on  the  purview  of  the  Act  (c). 

Where  it  was  enacted  that  a  water-works  company  should 
(1)  fix  and  maintain  fireplugs  ;  (2)  furnish  water  for  baths, 
wash-houses,  and  sewers;  (3)  keep  the  pipes  always  cbarged 
at  a  certain  pressure,  allowing  all  pei'sons  to  use  the  water 
for  extinguishing  fires,  without  compensation  ;  and  (4)  supply 
the  owners  and  occupiers  of  houses  with  water  for  domestic 

(a)  Buxton  v.  N.  E.  R.   Co.,  L.  grievance:   Coni'th  v.  Clulcy,    oG 

R.  3Q.  B.  549.  Pa.   St.  270;   e.  g.,   to  u  dcfeuted 

®*  Jersey  City  Gaslight  Co.  v.  candidate  for  an  oiiice,  to  question 
Consumers'  Gas  Co.,  supra.  So,  tlie  right  of  the  iucumbeiil  :  lb.  ; 
where  an  act  gave  a  writ  of  quo  or  to  a  dismissed  police  constable 
warranto  at  the  instance  of  a  pri-  of  a  munici[)ality,  to  question  the 
vate  relator,  "  upon  tlie  suggestion  right  ol'  the  nuiyor  to  his  olllcc  : 
of  any  person  or  persons  desiring  Convth  v.  MeCarter,  98  Id.  (i07. 
to  prosecute  the  same,"  it  was  lield  ib)  Couch  v.  Steel,  ;>  K.  &  B., 
that  the  phrase  must  be  restricted  402,  23  L.  J.  121;  Holmes  v. 
so  as  to  mean  anj'  person  having  Clarke,  30  L.  J.  Ex.  135. 
an  interest  to  be  alTected,  and  to  (c)  See  Atkinson  v.  Newcastle- 
give  to  a  private  relator  no  right  Water-works  Co.,  2  Ex.  D.  4-JO, 
to  the  writ  in  a  case  of  public  448.  per  Lord  Cairns,  Cockbuin,. 
right,    involving      no    individual  C.  J.,  and  Brett,  L.  J. 


§  473]  IMPLIED    liKMKDIKS.  673 

purposes;  subject  to  a  penalty  of  10/.  for  any  l>reacli  of  any 
of  those  duties,  rccov^erable  by  the  common  informer,  and  to 
a  further  penalty  of  forty  shillings  a  day  for  breaches  of  the 
second  and  fourth  duties,  recoverable  by  any  ratepayer  ;  it 
was  lield  that  the  owner  of  a  house  burnt  down  through  the 
company's  neglect  to  keep  their  pipes  dul^^  charged,  had  no' 
right  of  action  under  the  statute  against  the  company.  It 
w^as  improbable  that  Parliament  would  impose,  or  the  com- 
pany would  have  consented  to  undertake,  not  only  the  duty 
of  supplying  gratuitously  water  for  extinguishing  fires,  but 
the  liability  of  compensating  every  householder  injured,  as 
well  as  of  pa^nng  the  penalties  attached  to  the  neglect  of 
their  duty.  Besides,  the  circumstance  that  penalties  for 
breach  of  the  second  and  fourth  duties  were  recoverable  by 
the  ratepayers,  raised  the  inference  that  the  other  obligations 
were  intended  for  the  public  benefit  only  [a). 

§  473.  Special  Injury  by  Breach  of  Public  Duty  Necessary  for 
Action,  Remoteness. — At  all  events,  where  the  public  duty 
imposed  by  the  Act  is  not  intended  for  the  benefit  of  any 
particular  class  of  persons,  but  for  that  of  the  public  gen- 
erally, no  right  of  action  accrues  by  implication  to  any  person 
who  suffers  no  more  injury  from  its  breach  than  the  rest  of 
the  public.  A  public  injury  is  indictable  ;  but  it  is  not 
actionable,  unless  the  sufferer  from  its  breach  has  sustained 
some  direct  and  substantial  private  and  particular  damage 
beyond  that  suffered  in  common  with  the  rest  of  the  pub- 
lic (Z*).  If  A.  digs  a  trench  across  the  highway,  he  is  indict- 
able only  ;  but  if  B,  falls  into  it,  A.  is  liable  to  an  action  by 
B.  for  the  particular  injury  sustained  {c).  [A  person  may 
sustain  an  action  for  the  obstruction  of  a  highway,  where  he 
has  suffered  special  damage  by  reason  of  it,  as  where  he  has 
been  obliged  to  be  at  expense  in  removing  the  obsti-uction,. 
in  order  to  be  able  to  travel  the  road  ;°^  but  he  can  have  nO' 
action  for  a  total  obstruction  of  the  road  by  snow,  whereby,. 

(a)  Atkinson  V.  Newcastle  Water-  &c.,  R.  Co.,  1  Ex.  876  ;  Glossop  v. 
works  Co.,  ubi  sup.  Heston,  13  (!h.  D.  102. 

(b)  Iveson  v.  Moore,  1  Salk.  15  :  (c)  See  notes  to  Asbby  v.  "Wbite, 
K.   V.   Russell,  6  East,  427  ;  R.   v.  1  Sra.  L.  C.  *342. 

Bristol   Dock   Co.,    12  East,    428;  ^^  Lansing  v.  Wiswall,  5  Denio. 

per  Cur.  in  Cliamberlaine  v.Cbester,      (N.  Y.)  213. 

43 


U74  IMPLIED    KKMKDIES.  [^  4  7- J 

ill  coinnion  with  the  piihlic,  ho  has  boon  pi-ovcntod  from 
using  it/^]  Tiie  obstruction  of  a  navigable  river  becomes  a 
private  injury  as  well  as  a  public  nuisance,  if  access  is  there- 
by prevented  to  the  inn  of  the;  plaintitf,  who  loses  customers 
in  consequence  {(c) ;  or  if  a  carrier  is  thereby  put  to  the 
trouble  and  expense  of  convoying  his  goods  by  a  road  over- 
land (b).  When  the  public  duty  of  repairing  a  sea-wall  was 
imposed  on  a  municipal  corporation,  it  was  held  that  an 
individual  whose  house  was  damaged  by  the  sea,  in  conse- 
quence of  the  neglect  of  this  duty  to  keep  the  wall  in  repair, 
was  entitled  to  sue  the  corporation  for  compensation  (<?). 
But  the  iiijury  must  be  the  proximate,  necessary,  or  natural 
result  of  the  infringement  of  the  duty;  the  infringement 
being  the  causa  causans,  and  not  merely  a  causa  sine  qua 
non,  of  the  special  damage  (d).  [And  this  applies  even  where 
a  statute,  relating  to  the  punishing  of  an  offence,  contemphites 
the  redre-s  of  injuries  caused  by  them  to  individuals,  as, 
where  it  directs  that  the  proceeds  of  forfeited  bonds  given 
by  persons  prosecuted  for  crimes,  conditioned  for  their 
appearance  in  court  to  stand  trial,  shall  be  distributed,  inter 
alia,  "  to  satisfy  the  damages  sustained  by  any  person  by 
reason  of  the  commission  of  such  crime."  Cnder  such  a 
statute,  it  was  held  that  one  who  had  lost  money  at  play  in 
the  house  of  a  pei'son  who  was  prosecuted  for  keeping  a 
o-amblinc  house  and  forfeited  his  recognizance,  was  not 
entitled  to  be  re-imbursed  out  of  the  proceeds  thereof,  not 
only  because  he  had  lost  the  statutory  remedy  given  him  to 
obtain  such  ro-imburscment  from  the  offender,""  but  also 
because  his  misfortune  was  not  the  necessary  or  natural  direct 
consequence  of  the  misdemeanor  for  which  the  defendant 
w.is  prosecuted.     The  hitter's    offence    was    but    the    causa 

a-i  Griffin  v.   S:inbointon,   44  N.  5G. 

II   246  ('')  Lvmc    Rcii;is    v.    IIenl(!y,     1 

'(«)  Rose  V.   Groves.  5  M.  6:  G.  Bing.  N.  C.   222.     See  Nitrophos- 

6i;J ;  WilUcs  V.  Iluugerlord  Markc^t  phate  Co.  v.   St.   KtiUioiine  Dock 

€o  ',2  Bing.  N.  C."  281  ;  Lyon  v.  Co..  9  Cb.  D.  503. 

Fishmonirovs'    Co.,  1    App.    663  ;  (d)  Bonjumin  v.  Storr,  L.  R.  9  C. 

jMiirshal-rv    Ullcswatf-r  Co..  L.  R.  P.  400  ;  Coli-liesltr   v.    Brooke.    7 

7  Q.  B.  100,  per  Blackburn,  .T.  (.2.  15.  iWO  ;  Walker  v.  Goe.  3  II.  & 

(b)  Rose  V.  Miles,  4  M.  &  8.  101  ;  N.  39.").  1  Id.  351  ;  Romney  Mursli 

Dobson  V.  Blackmore.  9Q.  B.  991;  v.  Trinity  House,  L.  R.  .1  Ex.  204. 

r-.rson.s  V.   Betbiial  Green.  3  C.  P.  »^  See  ante,  §  408. 


§  474]  IMPLIED    REMEDIES.  CT5 

caiisarum  ;  the  loser's  own  voluntary  act  or  folly,  the   causa 
causans,  and  volenti  non  fit  injuria."'] 

§  474.  Statutes  Foreign  to  Individual  Interests  Give  no  Private 
Action. — Nor  does  any  right  of  action  arise  where  the  duty- 
has  been  imposed  by  the  Legislature  for  a  ]>urpose  altogether 
foreign  to  individual  interests.  Thus,  although  ship-owners 
are  required,  under  the  Contagious  Diseases  (Animals)  Act 
of  1861),  to  provide  pens  and  footholds  for  cattle  on  board, 
no  action  lies  against  them  under  the  Act  by  the  owners  of 
cattle  which  are  washed  overboard,  owing  solely  to  the  neg- 
lect to  provide  those  appliances  ;  for  the  Legislature,  in  pro- 
viding or  authorizing  such  regulations,  did  not  contemplate 
the  protection  of  proprietary  rights,  but  had  in  view  solely 
the  sanitary  purpose  of  preventing  the  communication  of 
infectious  disease  to  cattle  on  sea  transit  {a).  Where  a  person 
imported  cards  contrary  to  the  statute  3  Edw.  4,  c.  4,  which 
provided  that  the  cards  so  imported  should  be  forfeited ;  it 
was  held  that  he  was  not  liable  to  an  action  at  the  suit  of 
one  to  whom  the  king  had  granted  a  license  to  import  cards, 
paying  rent  to  the  king,  and  who  alleged  that  he  was  thereby 
disabled  from  paying  his  rent  ;  for  the  prohibition  did  not 
seem  to  have  been  intended  for  the  benefit  of  the  person  to 
whom  the  license  was  granted.  But  besides,  the  damage 
may  have  been  considered  too  remote  (h).  [The  accepted 
<loctrine  upon  this  subject  is  well  illustrated  by  the  following 
case  and  decision.  An  act  forbade  prison  authorities  to  per- 
mit a  convict  to  work  at  any  other  mechanical  trade  than 
that  in  which  he  had  been  educated  before  conviction  ;  made 
the  violation  of  this  prohibition  a  misdemeanor  punishable 
by  a  fine  of  $1,000  and  imprisonment  for  one  year  ;  and 
declared  it  to  be  the  duty  of  the  attorney-general  to  cause 
the  offender  to  be  prosecuted,  upon  information  and  com- 
plaint made  to  that  ofticer.  It  was  held  that  no  injunction 
could  be  obtained,' or  compensation  claimed,  at  the  suit  of 
private  workmen  alleging  injur}'  to  themselves,  by  reason  of 

»«  Com'th  V.  Robbins,  26  Pa.  St.  {h)  Roll.  Ab.  Action  sur  case.  M. 

165.  IG,  p.  106,  cited   in  the  judgment 

(ji)  33  &  38  Vict.  c.  70  ;  Gorris  v.  in  Couch  v    Steel,  3  E.   &  B.  413, 

Scott,  L.  R.  9  Ex.  125.  23  L.  J.  Q.  B.  126. 


070  IMPLIED    KEMEDIES.  [§  474r 

a  violation  of  the  statute,  the  injury  consisting  in  the  lowering 
of  wages  and  in  seriously  affecting  the  interests  of  the  plain- 
tiffs and  others  j)ursuing  the  same  trade,  by  the  unlawful  com- 
petition thus  raised  up  in  the  same.  It  was  said  that  a  public 
prohibitory  statute,  though  passed  chiefly  for  the  protection 
of  a  class,  still  does  not  confer  any  individual  rights.  Its 
infraction  is  a  wrong  to  the  public,  for  which  the  people,  in 
their  collective  capacity,  are  entitled  to  redress, — not,  how- 
ever, an  individual,  unless  he  has  sustained  a  special  injury 
not  in  common  wnth  others.  If,  however,  the  injury  is  to  a 
class,  it  is  general,  or  common  and  not  special.^'] 

»'  Smith  V.  Lockwood,  13  Barb.  (N.  Y.)  209. 


475]  EEPEAL.  677 


CHAPTER   XYir. 

Eepeal.     Commencement.     JuDicrAL   Notice. 

§  47i5.  Effect  of  Repeal  of  Repealing  Act  on  Original. 

^  478.  Effect  of  Repeal  on  Pending  Proceedings.     Prosecutions. 

§  479.  Effect,  etc.,  on  Actions  of  Penal  Nature,  or  where  Jurisdiction 

depends  on  Statute  Repealed. 
§  480.  Effect,  etc.,  on  Rights  and  Remedies  founded  Solely  on   Statute. 
•^  483.  Limits  of  this  Doctrine. 
§  484.  Effect  of  Savings  in  Penal  Acts. 
§  4S5.  Effect  of  Savings  of  Civil  Rights  and  Procedure. 
§  48G.  What  not  within  Saving  of  Existing  Rights,  etc. 
§  487.  Saving  of  Prosecutions  and  Rights  not  a  Saving  of  Procedure. 
§  488.  Effect  of  Repeal  on  Contracts  in  Violation  of  Statute  Repealed. 
§  489.  Time  when  Repeal  takes  Effect. 

§  490.  Re-enactment  not  a  Repeal  in  Spite  of  Express  Repealing  Clause. 
§  491.  Limits  of  this  Rule. 

§  493.  Effect  of  Repeal  of  Act  Incorporated  by  Reference  in  Another. 
■§  494.  Non-user  has  not  Effect  of  Repeal. 
^  495.  Qualification  of  this  Rule. 
§  49G.  Commencement  of  Statutes.     Ancient  Rule. 
§  498.  Modern  Rule.     Fractions  of  Day. 
§  499.  Postponement  of  Operation. 
§  500.  Repugnant  Acts  Passed  Same  Day. 
§  501.  What  Acts  are  Judicially  Noticed. 
§  503.  What  are  Public  Acts. 
§  503.  What  are  Private  Acts. 
§  504.  Private  Acts  Requiring  Judicial  Notice. 
§  505.  Construction  of  Private  as  Compared  with  Public  Acts. 

§  475.  Effect  of  Repeal  of  Repealing  Act  on  Original. — Where 
an  Act  is  repealed,  and  the  repealing  enactment  is  repealed 
by  another,  whicli  manifests  no  intention  that  the  first  shall 
continue  repealed,  the  common  law  rnle  was,  [and  in  the 
absence  of  any  statutory  declaration  to  the  contrary,  the 
general  rule  still  is,]  that  the  repeal  of  the  second  Act  revives 
the  first  ;'   and    revives   it,  too,    ab  initio,    and   not  merely 

»  Brown  v.  Barry,  3  Dall.  365;  People  v.  Davis,  61  Barb.  (N.  Y.) 
Planes  v.   Buzzard,   Hempst.    359;      456;  Gale  v.  Mead,  4  Hill.  (N.  Y.) 


678 


EKPKAL. 


[§^ 


iO- 


from  the  passing  of  the  reviving  Act  {a).  [The  revival  of 
the  original  statute  is  also,  in  general,  the  effect  of  the 
expiration  of  a  repealing  statute  by  its  own  limitation,' 
or  of  the  suspension  of  the  repealing  act ;'  and  it  is 
immaterial  whether  the  rej)cal  of  the  repealing  act  be 
express  or  by  implication/  Moreover,  it  extends,  not  only 
to  statutes,  but  to  the  common  law  ;  so  that,  where  an  act 
superseding  in  any  particular  the  common  law  rule 
previously  applicable  is  repealed,  that  rule  is  held  to  be 
revived/  The  doctrine  stated  is,  however,  not  without 
exceptions,  founded  in  the  necessity  of  giving  effect  to  the 
legislative  intent.  Thus,  it  is  said  tiiat  an  absolute  affirma- 
uve  repeal  of  a  statute  by  a  subsequent  one  will  survive  the 
expiration  of  the  latter  by  its  own  limitation  ;'  that  the 
repeal  of  a  statute  which  was  a  revision  of,  and  which  was 
intended  as  a  substitute  for,  a  former  act  to  the  same  effect, 
will  not  revive  the  latter,  such  a  result  being  manifestly 
contrary  to  the  intent  of  the  Legislature  ;^  and  that,  for  the 
same  reason,  the  repeal  of  an  act  amending  another  "  so  as 


109  ;  Hastings  v.  Aiken,  1  Gray, 
(Mass.)  163  ;  Com'th  v.  Church- 
ill, 2  Mat.  (Mass.)  118;  Com'th  v. 
Mott,  21  Pick.  (Mass.)  492  ;  James 
V.  Dubois,  16  N.  J.  L.  285  :  Poor 
Directors  v.  \\.  R.  Co.,  7  Watts  &  S. 
(Pa.)  2;5G  ;  E.xp.  Doran,  2  Pars. 
(Pa.)  407  ;  Zimmerman  v.  Turnp. 
Co.,  32  P.  F.  Sin.  (81*  Pa.  St.)  96  ; 
Doe  V.  Naylor,  2  Blackf.  (Ind.)  32; 
Teter  v.  Clayton,  71  Id.  237  ; 
Brinkley  v.  Svvicegood,  05  N.  C. 
620  ;  Harrison  v.  VValker,  1  Ga.  32; 
People  V.  Wlntermute,  1  Dak.  63. 
In  Durr  v.  Com'th  (Pa.),  11  Centr. 
Kep.  181.  it  was  held  that  the  act 
of  13  May,  1887,  whicli  contains  a 
general  repeal  of  "all  local  laws 
fixing  a  license  rate  less  than  "  that 
provided  by  that  act,  repealed  the 
act  of  3  Apr.,  1872,  applying  only 
to  Allegheny  Co.,  and  revived 
those  provisions  of  the  general  act 
of  26  Feb.,  1855,  which  were  not 
inconsistent  with  the  act  of  1887  ; 
the  act  of  1855  having  been  re- 
pealed by  that  of  1872  as  to  said 
county. 

(a)  2  Inst.  686  ;  4  Inst.  325  ;  Case 
of  P>isliops,  12  Rep.  7;  Phillips  v. 
Hopvvood,  10  B.  &  C.   39  ;  Tattle 


V.  Grirawood,  3  Bing.  496,  per 
Best,  C.  J.;  Fuller  v.  Redman.  26 
lieav.  600,  29  L.  J.  324.  [The 
Aurora  v.  U.  S.,  7  Cranch,  382. 
See,  as  to  llie  effect  of  the  repeal 
of  a  statute  repealing  anotlier  upon 
the  right  to  prosecute  for  an 
offence  against  the  latter  :  Com'th 
v.  Getchell,  and  Com'th  v.  Mott, 
ante,  i^  279.] 

•^  Collins  v  Smith,  6  Whart.  (Pa.) 
294.  See  U.  S.  v.  25  Cases  of 
Cloth,  Crabbe,  356,  infra. 

3  Brown  v.  Barrv,  3  Dal.   365. 

*  People  v    Davis,  61  Barb.  (N 
Y.)  456. 

'■  Matthewson  v.  Phoenix,  etc.. 
Foundry,  20  Fed.  Rep.  281  ;  State 
V.  liolfius,  8  N.  II.  550  ;  Bi.sh., 
\Vr.  L.,  i^  186:  and  see  Gray  v. 
Obear.  54  Ga.  231. 

«  U.  S.  V.  25  Cases  of  Cloth, 
Crabbe,  356. 

^  Butler  V.  Russel.  3  Cliff.  251. 
After  an  act  has,  in  several  different 
years,  been  re-enacted  with  changes, 
a  subsequent  repeal  of  the  earlier 
amcndalory  acts  neither  restores 
nor  repeals  the  original  act:  People 
v.  Assessors  of  Brooklyn,  8  iVbb-. 
Pr.  N.  S.  (N.  Y.)  150. 


§  4T(i]  KEPKAL.  679 

to  read "  in  a  given  manner,  which  operates  as  a  total 
merger  of  the  amended  act  in  the  amending  one,*  cannot 
revive  the  original  statute.'  And  it  has  been  denied,  that 
the  repeal  of  a  statute  revives  the  common  law  rule  which 
it  supplanted."  Nor  does  it  follow  from  the  rule  that  an 
act  is  revived  ab  initio,  that  proceedings  commenced  under 
an  act  which  was  repealed  before  their  completion,  are 
revived  and  reinstated  by  the  repeal  of  the  repealing  act, 
there  being  no  terms  in  the  latter  ratifying,  confirming  or 
reviving  them,  and  no  private  interests  having  vested  under 
them."  ISIor,  again,  does  the  revival  of  an  act  providing 
that  the  penalty  for  an  offence  shall  be  sued  for  by  a  com- 
mon informer,  by  the  repeal  of  the  act  authorizing  overseers 
only  to  sue,  so  far  as  it  excluded  others  from  so  doing, 
restore  the  right  of  a  common  informer  to  prosecute  for 
offences  committed  between  the  passage  of  the  second  and 
that  of  the  third  act,  the  right  of  the  overseers  to  sue 
remaining  exclusive  as  to  snch.'^] 

§  476.  But  the  rule  of  the  common  law,  in  this  respect, 
does  not  apply  in  England  to  repealing  Acts  passed  since 
1850.  Where  an  Act  repealing,  in  whole  or  in  part,  a 
former  Act,  is  itself  repealed,  the  last  repeal  does  not  now 
revive  the  Act  or  provisions  before  repealed,  unless  words  be 
added  reviving  them  {a).  [Similar  enactments  are  in  force 
in  many  of  the  states  of  the  Union  ;'^  and  the  rule  established 

«  See  ante.  §§  195-196,  294.  generally,    in     New     Hampshire, 

^People  vyMontgomery  Super-  Si assaclui setts,    Maine,    Vermont, 

visors,   67  N.  Y.   109  ;  Goodno  v.  Rhode  Island,  New  Jersey,  Ohio, 

Oshkosh,  31  Wis.  127.  Indiana,    Illinois,   Michigan,   Wis- 

'"  State    V.    Slaughter,    70    Mo.  consin,   Iowa,  Minnesota,  Kansas, 

484.  Nebraska,  West  Virginia,  Missouri, 

"  Com'th   V.    Leech.   24  Pa.  St.  Arkansas,        Texas,       Calitornia, 

55,  a  case  of  proceedings  to  extend  Colorado,    Dakota,    Idaho,    Mon- 

a  street  in  a  city.  tana.      South      Carolina,      Missis- 

'-  Vauvalkenburgh  v.  Torrey,   7  sippi,     Florida,     Louisiana,    Ari- 

Cow.  (N.  Y.)  252.  zona  ;    or   unless    both    laws   are 

(a)  13  &  14  Vict.  c.  21,  s.  15.  passed  at  the   same   session:   Vlr- 

13  See  Stimson,  Amer.  Stat.  L.,  ginia,  Kentucky.    And  see  Sullivan 

p.    143,   §   1043,    that,    by  express  v.  People,  15  111.  233  ;  Conunl  B"k 

statute,  no  actor  part  of  an  act  is  v.  CLiainbers,  16  Miss.  9  ;  Smith  v. 

to  be  deemed  revived  by  the  repeal  Hoyt,    14    Wis.  252;    Manlove  v. 

of     the      repealing      act     unless  White,    8    Cal.    376;  Tallamon  v. 

so   expressed, — as    to    repeals    by  Cardenas,    14  La.    An.    509  ;  Wil 

the     code      or     other     revisions,  kouski  v.  Witkouski,  16  Id.  232. 
New    York,    Washington,    Utah, 


6S0  REPEAL.  [§§  4:77,  478 

1)\'  tliein  has  been  lield  to  !»j)ply  to  repeals  by  implication."] 
But  it  seems  not  to  apply  where  the  lirst  Act  was  only 
modified  by  the  second,  by  the  addition  of  conditions,  and 
the  enactment  which  imposed  these  was,  itself,  afterwards 
repealed  (a).  In  such  a  case,  the  original  enactment  would 
revive.  [So,  where  a  statute  merely  excepts  a  particular 
chiss  of  cases  from  a  prior  general  law  which  continues  in 
force,  a  repeal  of  the  excepting  statute  returns  that  class  of 
cases  to  the  operation  of  the  general  law."  Nor  does  such 
a  rule  apply  to  an  act  suspending  a  repealing  act."  And 
wliere  remedies  upon  contracts  have  been  superseded  by  a 
statute,  the  repeal  of  the  latter  restores  them,  except  as  to 
rights  vested  under  the  statute  while  in  force." 

§  477.  [Where  the  rule  is  established  by  statute,  that  the 
repeal  of  a  repealing  act  shall  not  revive  the  original  act, 
without  express  words,  a  mere  declaration  by  the  Legisla- 
ture that  an  act  which  repealed  certain  sections  of  another 
"  shall  not  repeal  ''  such  sections,  is  not  a  law  reviving  or 
enacting  them.'"  Nor  was  an  act  applicable  to  the  several 
counties  of  the  state,  but  repealed  as  to  one  of  them,  held 
revived  by  a  subsequent  amendment  of  the  first  act,  though 
using  the  phi-aseology  of  the  same,  as  to  its  application  to 
"  the  several  "  counties  of  the  state."  But  the  passage  of 
a  supplementary  act,  excepting  certain  counties  from  the 
operation  of  an  act  passed  the  day  before,  to  which  it  was 
a  supplement,  and  which  repealed  another  statute,  was 
held  to  be  so  far  a  part  of  the  act  which  it  modified  as  to 
continue  the  old  law  in  force  as  to  those  counties."] 

^  478.  Eflfect  of  Repeal  on  Pending  Proceedings.  Prosecutions. — 
Where   an   Act   expii-es  or  is  repealed,  it  is,  as   regards   its 

'■•  Milnev.  Tluber,  3McLenn,212;  "   Johnson   v.    Meeker.   1   Wis. 

tStirniiin  v.  Stsite,  21  Tex.  734.  436.      It   was   held   in    Winter  v. 

(a)  ]\Iount  V.  Taylor,  L.   R.  3  C.  Dickerson,   42    Ala.    92,   tint   the 

P.  645.      See,    also,  Levi   v.    San-  ratitieation      of     laws     suspended 

derson,    and    J\Iiifin    v.    Attwood,  revives  tiiem  and  liens  dependent 

L.    R.    4   Q.     \i.    330.     [And    si'C  upon  them,  so  as  to  be  enforceable 

Glaholm  v.   Barker,  L.    K.  1  Ch.  as  before  su.speusioii. 

223.  228-9.]  '»    State    v.    Conkling,    19   Cal. 

'5  Smith  V.   lioyt.  14  Wis.  2r)2  ;  501. 

and  see  Bank  v.  Collector,  3  Wall.  "»  People  v.  Tyler.  36  Cal.  522. 

495.  -0  Manlove  v.  White,  8  Cal.  376. 

'6  Brown  v.  Barry,  3Dall.  365. 


§478] 


REPEAL. 


081 


operative  effect  (a),  considered,  in  the  absence  of  provision 
to  the  contrary,  as  if  it  had  never  existed,  except  as  to 
matters  and  transactions  past  and  closed  {h).  [As  to  all 
future  matters,  all  steps  yet  to  taken,  the  repealed  statute 
upon  which  they  are  based,  is  treated  as  utterly  obliterated  ; 
so  that,  if,  after  I'cndition  of  judgment,  and  pending  an 
appeal  therefrom,  there  has  been  a  change  or  repeal  of  the 
law  applicable  to  the  rights  of  the  parties,  the  appellate 
court  must  hear  and  decide  the  case  according  to  the  then 
existing  law,  and  upon  a  second  trial,  the  inferior  court 
must  recognize  the  change  and  conform  to  it,  not  to  the  law 
as  it  may  have  been  at  the  time  of  the  first  trial/']  Where, 
therefore,  a  penal  law  is  broken,  the  offender  cannot  be 
punished  under  it,  if  it  expires  [or  is  repealed]  before  he  is 
convicted,  although  the  prosecution  was  begun  while  the 
Act  was  still  in  force,  [unless  the  repealing  act  contains  a 
saving  clause]  (c).     Every   step  taken   under  a  statute  that 


(a)  See  Atty.-Genl.  v.  Larap- 
lougb,  sup.  §  49. 

{b)  Per  Lord  Tenterdea  ia 
Suitees  V.  Ellison,  9  B.  »&  C.  750  ; 
Churchill  v.  Crease,  5  Bing.  178  ; 
see,  also,  Kay  v.  Goodwin,  tJ  Bing. 
576,  per  Tindal,  C.  J.  ;  Morgan  v. 
Thorne,  7  M.  &  W.  400  ;  Steven- 
son V.  Oliver,  8  M.  &  W.  24  ; 
Simpson  v.  Ready,  11  M.  &  W. 
34G  ;  per  Parke,  B.  ;  Comp.  R.  v. 
West  Riding,  1  Q.  B.  D.  220. 

"  Musgrove  v.  R.  R.  Co.,  50 
jVliss.  677,  cit.  Sch'r  Rachel  v.  U. 
S.,  6  Cranch,  329. 

(c)  1  Plale,  P.  C,  291,  309  ; 
Miller's  Case,  1  W.  Bl.  451 ;  R.  v. 
London  (JJ.)  3  Burr.  1450  ;  Cliar- 
rington  v.  Meatheiiugham,  2  M.  & 
W.  228  ;  R.  v.  Mawijan,  8  A.  & 
E.  496  ;  R.  v.  Denton",  18  Q.  B. 
761,  21  L.  J.  M.  C.  207 ;  R.  v. 
Swann,  4  Cox,  108  ;  U.  S.  v.  The 
Helen,  2  Cranch,  203.  [1  he 
Irresistible,  7  Wheat.  551  ; 
Steamsh.  Co.  v.  Joliffe,  2  Wall. 
450  ;  U.  S.  V.  Tynen,  11  Wall.  88  ; 
"Norris  v.  Crocker,  13  How.  429  ; 
Yeatou  v.  U.  S.,  5  Cranch,  281  ; 
Sch.  Rachel  v.  U.  S.,  6  Id.  32!)  ; 
States  V.  Passmore,  4  Dall.  372  ; 
Anon.,  1  Wash.  84  ;  U.  S.  v.  Fin- 
lay,  1  Abb.  U.  S.  364  ;  Hartung  v. 
People,    22  N.  Y.    95  ;  People   v. 


Police  Board,  16  Abb.  Pr.  (N.  Y.) 
473  ;  Smith  v.  Banker,  3  How.  Pr. 
(x\.  Y.)142  ;  Com'th  v.  Kimball,  21 
Pick.  (Mass.)  313;  Com'th  v.  Mar- 
shall, 11  Id.  350  ;  Com'th  v.  Mc- 
Dunough,  13  Allen  (Mass.)  581  ; 
Jones  v.  State,  1  Iowa,  3t)5  ;  State 
v.  Allaire,  14  Ala.  435  ;  Griffin  v. 
State,  39  Id.  541  ;  Aaron  v.  btate, 
4U  Id.  307  ;  Carlisle  v.  State,  42  Id. 
523  ;  Com'th  v.  Duane,  1  Binn. 
(Pa.)  601  ;  Abbott  v.  Com'th,  8 
Watts  (Pa.)  517  ;  Genkinger  v. 
Com'th.  32  Pa.  St.  99  ;  People  v. 
Tisdale,  57  Cal.  104;  People  v. 
Hobson,  48  Mich.  27  ;  State  v. 
OConnor,  13  La.  An.  486  ;  Heald 
V.  State  36  Me.  62  ;  Lewis  v. 
Foster,  1  N.  H.  61  ;  State  v.  Inger- 
soll,  17  Wis.  631  ;  Rood  v.  Ry. 
Co.,  43  Id.  146  ;  Keller  v.  State,  12 
Md.  322  ;  Annapolis  v.  State,  30 
Id.  112;  Calkins  v.  State,  14  Ohio 
St.  222 ;  State  v.  Fletcher,  1  R.  I. 
193  ;  Taylor  v.  State,  7  Blackf. 
(Ind.)  93  ;  Stale  v.  Lloyd,  X!  Iiid. 
659  ;  Howard  v.  Stale,  5  Id.  183  ; 
Si)eckert  v.  Louisville,  78  Ky. 
287;  State  v.  Cole,  2  McCord 
(S.  C.)  1  ;  Slate  v.  Cross,  4  Jones 
L.  (N.  C.)  421  ;  State  v.  Long,  78 
N.  C.  571  ;  Scott  v.  Com'th,  2  Vu. 
Cas.  54  ;  Montgomery  v.  State,  2 
Tex.  App.  618  ;  Tut()u  v.  State.  4 


G82 


REPEAL. 


[§    ^'J'^ 


has  been  repealed  is  utterly  void  ;  presentnieut,  trial,  con- 
viction and  sentence  become  illegal,"  If  an  indictment  has 
been  found,  it  may  be  quashed  on  motion ;"  for  the  court  is 
bound  to  take  notice  of  the  repeal."  Though  a  conviction 
has  been  had,  the  judgment  is  arrested  ;"  and  though  judg- 
ment has  been  entered,  if  an  appeal  from  it,  or  other  pro- 
ceeding for  review  of  it  is  pending,  the  judgment  must  be 
set  aside."  And  so,  even  after  conviction,  appeal  and 
argument,  but  before  final  judgment  ;"  and,  though  a 
repeal  after  final  judgment"  will  not  ordinarily  arrest  the 
execution  of  the  sentence,"  and  will  not  do  so  even  in  capi- 
tal cases  where  sentence  has  been  pronounced  and  the  day 
set  for  execution,'"  yet,  in  the  latter  class  of  cases,  if  the 
sentence  of  death  has  been  pronounced,  but  not  executed  on 
the  day  set  for  its  execution,  a  repeal  of  the  statute,  before 
the  criminal  is  re-sentenced  requires  his  discharge."  The 
same  effect  follows  any  modification  of  a  penal  statute, 
which  exempts,  without  special  reservation,  a  particular 
class  from  its  operation." 

§   4:79.   Effect,  etc.,  on  Actions  of  Penal  Nature,  or  Where  Juris- 
diction Depends  on  Statute  Repealed. — [Actions  in    their    nature 


Id.  472;Pinckard  v.  State,  13  Id. 
378  ;  Mulkoy  v.  Stale.  16  Id.  53  ; 
Wall  V.  Stale.  18  Tex.  683  ;  Greer 
V.  State,  2'3  Id.  588  ;  IIirscbl)ui-g 
V.  People,  G  Col.  145  ;  Bish.,  Wr. 
L.,  §  177,  and  cases  in  note  1,  p. 
166.'] 

^  Hirschbmrg  v.  People,  6  Col. 
145. 

2»  Carlisle  v.  State,  43  Ala.  533  ; 
Annapolis  v.  Slate,  30  Md.  112  ; 
U.  S.  V,  Finlay,  1  Abb.  V.  S. 
364. 

"  Musgrove  v.  R.  R.  Co.,  50 
Miss.  677. 

"  Cora'th  V.  Duane,  1  Binn. 
(Pa.)  601,  608;  Slate  v.  Long,  78 
N.  C.  571  ;  Com'lh  v.  Kimball,  21 
Pick.  (Mass.)  373  ;  Com'tii  v.  .Mar- 
shall, 11  Id.  350;  Norrisv.  Crocker, 
13  How.  439. 

-s  Lewis  V.  Foster,  1  N.  H.  61  ; 
Tuton  V.  Stale,  4  Tex.  App.  473 ; 
Hubbard  v.  Slate.  2  Id.  506  ;  Filze 
V.  Slate,  13  Id.  373  ;  Speckert  v. 
Louisville,  78  Ky.  387:  where  the 
c(nirt,  liowever,  ordered  the  appel- 


lant to  pay  the  costs,  and  where  it 
was  also  held  that  the  repeal  took 
away  the  prosecuting  officer's 
riaht  to  fees  in  the  aelion. 

■"«  Keller  v.  Slate,  13  Md.  822. 

■^*  Or  after  affirmance  in  a  higher 
court  of  the  judgment  of  the 
lower :  People  v.  Hobson,  48  Mich. 
27. 

■^9  Bish.,  Wr.  L.,  §  177,  cit. 
State  V.  Addington,  2  Bailey  (S.  C.) 
516  ;  Foster  v.  Medtield,  3  Met. 
(Mass.)  1. 

3»  See  Aaron  v.  Stale,  40  Ala. 
307. 

3'  Ibid.  Nor  would  the  power 
to  pronounce  sentence  be  .saved,  in 
such  a  case,  by  a  saving  of  pend- 
ing prosecutions  or  prosecutions  to 
be  brought  for  offences  com- 
mitted before  its  passage  ;  for  the 
prosecution  cannot  be  said  any 
longer  I®  be  pending  :  Ibid. 

^■^   See   Slate   v.  Bank,    1   Stew. 
(Ala.)  347;  Com'lh  v.  Leflwich,  5. 
Rand.  (Va.)  657;  Com'lh  v.  Welsh, 
2  Dana  (Ky.)  330. 


§  479]  REPEAL.  CSIT 

penal,  pending  at  the  tiine  of  the  repeal  of  the  statute 
authorizing  them,  fall  with  it."  A  statute  authorizing  tlur 
entry  of  judgment  for  double  the  amount  of  damages  found 
by  the  jury  being  in  the  nature  of  a  penal  statute,"  the 
repeal  of  the  statute  after  verdict,  but  before  judgment,  will 
defeat  the  right  to  such  recovery.'^  A  fortiori  must  such  be 
the  result,  where,  though  the  liability  has  arisen,  no  pro- 
ceeding has  been  taken  for  its  enforcement.^'  And  "  the 
same  rule  applies  to  all  proceedings,  whether  civil  or  criminal, 
going  on  by  virtue  of  a  statute  at  the  time  of  its  repeal."" 
Wherever  the  jurisdiction  exercised  in  proceedings  depends 
wholly  upon  statute,  and  the  statute  is  repealed,  or  expires 
by  its  own  limitation,'*  the  jurisdiction  is  gone,  and  with  it 
the  whole  proceeding,  imperfect  at  the  time  of  the  repeal- 
or  expiration,  falls  to  the  ground,  unless  there  be  a  reserva- 
tion as  to  pending  rights  or  causes.'*  So,  where,  after  a  re- 
port made  by  viewers,  appointed  by  a  certain  court  under  an 
act,  made  in  favor  of  a  road, — a  review  granted, — and 
report  of  re- viewers  filed,  also  in  favor  of  the  road, — an  act 
took  away  the  jurisdiction  of  that  court,  the  latter  could 
proceed  no  further.""  Where  a  commissioner,  to  whom,  in 
pursuance  of  a  statute,  a  case  had  been  referred  by  con- 
sent, made  his  report  after  the  repeal  of  the  statute,  the 
court  could  not  act  upon  exceptions  filed  to  the  report." 
Where  a  writ  of  foreign  attachment  was  issued  under  an  act, 
which,  during  the  pendency  of  the  suit  was  repealed  with- 

2^  Union  Iron  Co.  v.  Pierce,  4  Baltimore,     etc.,    II.    R.    Co.    v. 

Biss.    327  ;   Com'th    v.    Shopp,    1  Grant,  98  U.  S.  398  ;   South   Caro- 

Woodw.  (Pa.)  123.  lina  v.  Gaillard,  101  Id.  433  ;   111., 

3^  Ante,  §  331.  etc..  Canal  v.  Chicago.  14  111.  334  ; 

3s  Bay  Citv,   etc.,  R.   R.   Co.  v.  North  Canal  Str.  Road,  10  Walts 

Austin,    21    Mich.     390.       Comp.  (Pa.)  351  ;   Fenelon's  Pct'u,   7  Pa. 

Worthcn  v.  Ratclifle,  42  Ark.  330,  St.   173  ;   Hampton  v.  Com'th,    19 

post,  §  481.  Id.    329  ;   Uwchlan  Tp.   Road.  30 

36  Com'th  V.  Standard  Oil  Co.,  Id.      156;    Road    in    Halfield,    4 

101  Pa.   St.  ll'J,  the  case  of  a  pen-  Yeates  (Pa.)  392  :  Lamb  v.  Schot- 

alty  added    to    a  tax   for  certain  tier,    54    Cal.    319 ;      Macnawhoc 

shortcomings  :  see  post,,  §  483.  Plant'n  v.  Thompson,  36  Me.  365  ; 

3^  Sedgw.,  pp.  111-112.  Hunt  v.  Jennings,  5  Bhukf.  (Ind.) 

38  Assessors  v.  Osborne,  9  Wall.  195  ;  Smith  v.  Arapahoe  Dist.  Ct., 

567;   Stoever  v.  Immell,  1   Watts  4  Col.  162. 

(Pa.)  258;  Com'th  v.    Beatty,  Id.  ''•' North  Canal  Str.  Road,  supra; 

382.  and  see  North  Str.,  1  Pears.  (Pa.) 

3^  Merch.   Ins.  Co.  v.  Ritchie.  5  199. 

Wall.  541  ;  Exp.  McCardle.  7  Id.  ■"  State  v.  Brookovcr,  22  W.  Va. 

506  ;    Gates  v.  Osborne,  9  Id.  567  ;  214. 


684  REPEAL.  [§   *80 

out  siiving  pending  suits,  tlic  proceeding  was  held  to  be  at 
an  end,  and  all  subsequent  steps  in  it  coram  non  jaiice  and 
void."  And,  of  course,  where]  in  an  action  for  less  than 
forty  shillings,  the  defendant  pleaded  that  the  debt  ought 
to  have  been  sued  for  in  a  local  Court  of  requests,  the  Act 
establishing  that  Court  having  been  repealed  after  the  plea 
but  before  the  trial,  the  plea  failed  {a).  Where  ])laintiff 
got  a  verdict  for  one  shilling,  in  June,  1840,  and  the  judge 
did  not  grant  a  certificate  to  deprive  him  of  costs  under  the 
43  Eliz.  c.  6,  until  the  following  month,  by  which  time  that 
Act  was  repealed  by  the  3  &  4  Yict.  c.  24  ;  it  was  held  that 
the  power  of  certifying  could  not  be  exercised,  in  such  a 
case,  after  the  repeal,  and  that  the  certificate  wnis  void  {h). 
So,  where  an  action  was  brought  and  judgment  recovered  in 
1807,  in  a  case  where  title  was  in  question,  and  the  plaintiff 
would  then  have  had  his  costs,  either  by  the  presiding 
judge's  certificate,  under  the  13  &  14  Vict.  c.  61,  or  by  a 
judge's  order,  to  which  he  would  have  been  entitled  ex 
debito  justitise  under  the  15  &  16  Vict.  c.  54,  but  he 
obtained  neither  until  after  the  1st  of  January,  1868,  when 
both  of  those  Acts  stood  repealed  by  the  30  &  31  Vict.  c. 
142  :  it  was  held  that  the  powers  under  those  Acts  had 
ceased  to  exist,  and  could  not  be  exercised  in  the  plaintiff's 
favor  (c). 

§  480.  Effect,  etc.,  on  Righ's  and  Remedies  Founded  Solely  on 
Statute.— [The  same  rule  applies  to  rights  and  remedies 
founded  solely  upon  statute,  and  to  suits  pending  to  enforce 
such  remedies."^  If,  at  the  time  the  statute  is  repealed,  the 
remedy  has  not  been  perfected  or  the  right  has  not  become 
vested,  but  still  remains  executory,  they  are  gone/*     Such  is 

^^  Stephenson  v.  Doe,  8  Blackf.  L.   R.  3  Ex.  141,  where,  however, 

(Ind.)  008.  Morgan  v.  Tliorne,  was  not  oiled. 

(rt)  Waruc  V.  Beresford,  2  M.  &  See,  also.  Wood  v.  Riley,  L.    R.  3 

W.  848.     If  an  Act  which  author-  C.    P.    2G  ;   Doc  v.    Holt,  21  L.  J. 

izcd  the  laying  of  rails  on  a  load  Ex.  335  ;   Comp.   Doc  v.    Roe,  22 

were    repealed,    the     rails    would  Id.  17 ;  Hobson  v.  Neale,  Id.  25, 

probably  not  remain  lawfully  :  R.  179. 

V.  Morris,  2  B.  &  Ad.  441.  '•'  Bennet  v.  Hargus,  1  Neb.  419. 

(b)  i\Iorgaa  v.  Thorne,  7  M.  &  •'^  lb.  ;  Butler  v.  Palmer.  1  Hill 
W.  400.  (X.    Y.)  824;  Bailey  v.   Mason,  4 

(c)  Butcher  v.  Henderson,  L.  R.  Minn.  546 ;  Van  Inwageu  v. 
3  Q.  B.  335.     But  see  contra,  Res-      Chicago,  01  111.  31. 

tall  V.  London  &  S.   W.  R.   Co., 


§   481]  KKl'KAL.  685. 

the  effect,  e.  g.^  of  ;in  :ict  takiuf^  away  the  riiijht  to  acquire  a 
mechanic's  lien,  if  the  requisite  proceiMliui^s  to  fix  the  lien 
hav^e  not  been  completed  ;"  of  the  repeal  oi  an  act  b}'  which 
the  Legislature,  ex  niero  motu,  gives  an  individual  property 
belonging  to  the  state,  if  the  grant  be  not  accepted  ;'*  of  an 
act  repealing  the  authority  given  to  towns  to  pay  bounties 
to  volunteers,  and  prohibiting  them  from  making  appropria- 
tions for  such  purpose,  even  after  a  vote  of  the  town  to  pay 
such  bounties."'  So,  where  an  act  had  been  passed  authoriz- 
ing mortgage  debtors  to  redeem  their  property  sold  under 
foreclosure  decree,  within  one  year  from  the  date  of  sale,  and  a 
sale  was  made  on  December  27,  1837,  and  a  subsequent  act,  to 
take  effect  in  November,  1838,  repealed  the  law  referred  to, 
it  was  held,  that,  as  the  right  acquired  under  the  repealed 
law  was  inchoate  merely,  until  actual  exercise  of  it,"  there 
could  be  no  right  to  redeem  from  the  sale  of  Decendjer  27, 
1837,  after  the  repealing  act  went  into  effect."*  Again,  where 
an  act  authorizing  the  opening  of  streets  directed  the  assess- 
ment of  damages  to  property  holders  upon  lots  benefited  by 
the  improvement,  and  gave  a  proceeding  to  enforce  payment 
thereof,  the  repeal  of  the  act,  before  the  consummation  of  the 
proceedings,  destroyed  as  well  the  right  to  recover  as  the 
obligation  to  pay/"  So,  too,  the  defence  of  usury  falls  with 
statute  on  which  it  rests." 

§  481.  [The  rule  would,  of  course,  be  otherwise,  if  the 
rights  referred  to  had  become  vested  before  the  repeal.'''' 
If,  e.  g.,  the  grant  by  the  Legislature  had  been  accepted,  a 
repeal  of  the  statute  would  not  deprive  the  grantee  of  the 
property ;"  for  rights  that  have  become  vested  nnder  a 
statute   cannot  ordinarily   be   divested   by   a  repeal  of  it." 

*5  Bailey  v.  Mason,  supra.     See  =>  Ewcll  v.  Datrgs,  108  U.  S.  143. 

Templeton  V.  Home,  82  111.  491,  as  Comp.      Whitaker     v.     Pope,     2 

\o   the  control  of  the  Legislature  Woods,,  463,  and  infra,  note  03. 

over  such  remedies.  f'-  Comp.  ante,  ti^  271,  ct  seq. 

^^  Sec  James  v.  Dubois,  16  N.  J.  '"'^  James  v.  Dubois,  supra. 

L.  285.  f-4  Ibid.  ;  Den  v.  Robinson,  5  Id. 

4'Veats  V.   Danbury,  37  Conn.  C89  ;  Rice  v.  R.  R.  Co.,  1  Black, 

412.  358  ;  Naught  v.  O'Neal,  1  III.  App. 

48  See  ante,  §  281.  29  ;   Taylor  v.    Rushing,  2   Stew. 

«   Butler     V.    Palmer,    1     Hill  (Ala.)  160  ;  Davis  v.  Minor,  2  .Aliss. 

(N.  Y.)324.  183;  M\Me(lien  v.  Mavor,  2  liar. 

*»  Hampton   v.    Com'th,  19  Pa.  &  J.  (Md.)  41  ;  E.\p.  Graham,  13. 

St.  329.     See  this  case,  ante,  §  461.  Rich.    (S.    C.)   '277;    Mitchell    v. 

note.  Doggett,  1  Pla.  356. 


G8»;  REPEAL.  [§    482 

Tliiiti,  where  a  plaintiff  had  perfornu'd  services  for  a  sub- 
contractor on  a  railroad  and  gave  notice  to  the  company  of 
Ids  claim,  which,  under  the  then  existing  statute,  fixed  it 
with  liability  therefor,  and  the  act  was  subsequently  repealed, 
it  was  held  that  he  had  acquired  a  vested  right  of  action 
against  the  company  whicli  was  not  affected  by  the  repeal, 
and  that  his  suit  should  be  sustained/'*  So,  it  has  been  lield 
that  the  repeal  of  a  statute  takes  away  no  right  of  action  for 
damages  which  has  already  accrued."  Thus,  where  an  act 
which  made  it  unlawful  for  a  railroad  company  to  charge 
higher  freight  rates  than  those  prescribed  in  the  act  was 
i-epealed,  it  was  held  that  a  party  who,  during  the  time  when 
the  act  was  in  force,  was  compelled  to  pay  higher  rates,  and 
did  so  under  protest,  was  not  deprived,  by  the  repeal,  of  his 
right  of  recovery  therefoi'."  And  even  where  one  had,  under 
a  certain  statute,  acquired  a  right  to  the  payment  of  double 
the  value  of  his  improvements  on  donated  land,  it  was  held 
that  this  was  a  vested  right  which  would  not  be  divested  by 
the  repeal  of  the  statute/* 

§  482.  Limits  of  this  Doctrine. — [The  doctrine,  indeed,  of  the 
destruction  of  imperfect  rights  and  actions  depending  on 
statutes,  by  their  repeal,  must  not  be  carried  beyond  its  proper 
scope.  It  has  been  said  that  an  act  repealing,  or  in  anywise 
modifying,  the  remedy  of  a  party  by  action  or  suit,  should 
not  be  construed  to  affect  actions  or  suits  brought  before  the 
repeal  or  modification.^'  Whilst  this  statement  is  probably 
too  broad,  it  is  nevertheless  true,  that,  where  the  effect  of 
the  new  legislation  is  not' to  take  awa}^  the  jurisdiction  or 
right  previously  existing,  nor  to  deny  a  remedy  for  its 
enforcement  substantially  like  the  one  previously  allowed, 
but  merely  to  change  the  remedy,  the  right  and  the  juris- 
diction continue  under  the  form  directed  by  the  new  act, 
where  it   applies,  or  else  ncder  the  old  law.""*  Thus,  where, 

«  Streubel  v.  R.  II.  Co.,  12  Wis.  ;i30.     Coinp.  Bay  City,  etc.,  R.  R. 

67.  Co.  V.  Ausliu,  21  Mich.  390,  ante, 

f-^  Grey  v.  Mobile  Trade  Co.,  55  §  479. 

Ala.  387.     And  sec  ante,  §  7o,  note  ^^   Ncwsom     v.    Greenwood,    4 

31.  Ores.  119. 

"Graham   v.   Rv.   Co.,  53  Wis.  eo  xii,.i^,„.y  TreeRond,  43  Pa.  St. 

47:J.                           "  139  ;    Uwclilan   Tp.   Road,  30  Id. 

^«  Wort  hen  v.  Ralclillc,  42  .\rk.  156. 


4S3] 


KEPEAL. 


687 


pending  a  proceeding  for  the  laying  out  of  a  road,  nnder  an 
act  requiring  the  appointment  of  six  viewers,  an  act  was 
passed  repealing  this  hiw  as  to  a  certain  county  by  changing 
the  mode  of  proceeding,  {e.  g.,  in  substituting  three  for  six 
viewers,)  but  not  the  court  in  which  the  proceedings  were  to 
be  iiad,  or  the  basis  of  the  exercise  of  the  jurisdiction,  or 
the  powers  of  the  court  iu  the  proceedings,  it  was  held  that 
the  proceeding  might  be  perfected  under  the  new  hiw,  and 
that,  upon  petition  for  a  review,  tlie  appointment  of  three 
viewers  for  the  purpose  was  proper."  So,  it  is  said,  that 
the  repeal  of  a  statute  prescribing  merely  a  particular  mode 
of  trial,  will  not  annul  proceedings  had  under  the  statute  in 
cases  pending  at  the  time  of  repeal  ;"  and  that,  where  a 
statutory  remedy  for  a  right  created  by  the  same  statute  is 
repealed,  but  the  repealing  statute  gives  a  substantially 
similar  remedy,  the  right  may  be  enforced  in  accordance 
with  the  method  prescribed  by  the  later  act." 

§  483.  [Even  in  the  case  of  statutes  falling,  strictly  or  in 
a  general  sense,  under  the  head  of  penal  laws,  the  intention 
of  the  Legislature  has  been  permitted  to  prevail  over  the 
rigid  application  of  the  rule.  As  regards  criminal  statutes, 
the  rule  that  the  repeal  of  the  statute  under  which  a  prisoner 


*'  Hickory  Tree  Road,  supra  ; 
and  see  UwchUm  Tp.  Road, 
supra. 

6-^  Danfortb  v.  Srailli,  23  Vt.  247. 

«3Knoup  V.  Bank,  1  Ohio  St. 
603  ;  and  see  MclMullen  v.  Guest, 
6  Tex.  275,  also  Nash  v.  White's 
B'k,  37  Hun  (N.  Y.)  57.  In  tiie 
latter  case,  an  act  of  1870  author- 
ized the  recovery  of  double  the 
amount  of  usurious  interest  taken 
by  banks  in  excess  of  seven  per 
cent.  An  act  passed  in  1880 
chanj^ed  this  lawful  rate  of  interest 
to  six  per  cent.  An  action  had 
been  begun  in  1873.  and  was  tried 
for  the  i^hird  time  in  1884.  It  was 
held  that  the  act  of  1880  did  not 
take  away  the  plaintiff's  right  to 
recover  the  penalties  of  the  act  of 
1870.  It  was  said  that  the  act  of 
1880  did  not  repeal  the  act  of  1870 
as  a  whole,  nor  repeal  and  re-enact 
it ;  its  provisions  and  elTect  were 
prospective  only:  the  right  to  "  re- 


cover back  twice  the  amount  of 
the  interest  thus  paid"  in  excess  of 
legal  interest  femained  undisturbed 
by  the  act  of  1880,  and  was  still  a 
part  of  the  act  of  1870,  which,  as 
amended,  still  declared  the  right  to 
sue  and  recover.  ' '  This  right  thus 
expressed  covers  tw^o  periods,  so 
to  speak:  one,  when  the  legal  rate 
of  interest  was  seven,  and  the  other 
later,  when  it  is  six  per  cent,  per 
annum,  as  the  boundary  of  profit 
to  banking  as.sociations  in  the  dis- 
count of  commercial  i)aper."  Kno.x 
v.  Baldwin,  80  N.  Y.  010,  is  dis- 
tinguished on  the  grounds  that 
there  the  amendment  iu  question 
was  "so  as  to  read  as  follows," 
(See  ante,  §  19G  ; )  and  distinctly 
did  away  with  the  original  pro- 
vision on  which  the  action  was 
founded,  and  that  the  action  was 
begun  after  the  amendment  had 
taken  effect. 


088  Ki-:i'KAi..  [§  484 

is  being  prosecuted  requires  liis  (lischar<:5e,  is  said  to  be 
founded  upon  a  presumption  of  legislative  pardon."  Pro- 
ceeding upon  such  a  basis,  the  rule  could,  of  course,  not 
a])ply  wlicM-e  there  is  no  room  for  such  a  presumption." 
Thu?.  where  an  act  was  passed  providing  a  new  system  for 
ilie  granting  of  licenses  for,  and  regulating,  with  new 
punishiniints,  the  sale  of  liquors,  but  postponing  until  a  cer- 
tain date  the  going  into  effect  of  the  new  law,  by  permitting 
licenses  to  be  issued  under  the  old  law  up  to  that  date,  but 
not  beyond,  it  was  held,  that,  the  old  law  i-emained  in  force 
us  to  such  licenses  during  their  lives."  The  presumption 
that  a  statute  was  designed  to  operate  prospectively,  both  as 
an  enactment  and  as  a  repeal,  was  made  the  ground  of  a 
decision  that  an  act  consolidating  the  tax-laws  of  a  state,  and 
throughout  making  its  provisions  "hereafter"  applicable, 
did  not  affect  settlements  made  before  its  passage  but 
remaining  uncollected  f  whilst  an  obvious  limitation  to  its 
proper  scope  and  purpose  required  the  construction  whereby 
a  statute  repealing  an  act  authorizing  the  levying  of  a  tax 
and  imposing  a  penalty  for  failure  to  pay  the  same,  was  held 
to  forbid  the  collection  of  the  penalties,  but  not  to  invalidate 
the  assessments  so  as  to  relieve  tax-payers  from  the  obligation 
to  ])ay  the  tax."' 

"  §  484.  Eflfect  of  Savings  in  Penal  Acts.— [Subject  to  these 
exceptional  considerations,  and  within  the  reasonable  limits 
pointed  out,  it  may  be  laid  down  as  a  general  rule  that  the 
only  way  in  which,  in  any  of  the  cases  referred  to,  the 
power  to  perfect  a  right  or  proceeding  can  survive  the  repeal 
of  the  act  creating  or  authorizing  it,  is  by  express  reservation 

^*  See  State   v.  Brewer,  22   La.  see  U.   S.    v.  Barr,  4  Sawyer,  254 

An.   273  ;  Governor  v.   Howard,  1  (Rev.  St.,  i^  i;]);  and  that  an  iridirt- 

Murph.  (N.  C.)  4(i5.  moul  found  uiider  an  act  ix-pealt'd 

"^  See  State  v.  Brewer,  supra.  is  unalTected  b}'  the  repeal  in  Inwa 

''<' Sanders  V.  Com'tb,  2U  W.  N.  and  Arkansas,  see  State  v.  Scliallor, 

C.  (Pa.)  220.      ludietments  found  21  Iowa,  486  ;  McCuen  v.  Stale,  19' 

l)efore  tlie  going  into  effect  of  the  Ark.  6o4. 

Kentucky  code,  were  held   triable  '''  Pacif.   &  Atlant.   Tel.   Co.  v. 

under  it  :  Laugbliu   v.  Com'tb,   I'd  Com'th,   00   Pa.    St.   TO.     And  see 

Bush   (Ky.)  201.       See,    also,  that  Files  v.  Fuller,  44  Ark.  273. 

an   (ift'fiice  committed   before  the  "''*  Bclvidere  v.  11.  R.  Co.,  34  N. 

adoption  of  ceitain  revisions  may  J.  fj.  193.     See  Com'th  v.  Standard. 

be  incpiired  into  and  prosecuted  as  Oil    Co.,   101   Pa.   St.    119,   ante,  §, 

if   they  never   bad  been  adopted  :  -179. 

People  V.  Sloan,  2  Utah,  320  ;  and 


§4-4]  REPEAL,  689 

in  the  act  of  repeal."     The  rule  of  construction  applicable  to 
such  clauses  has  already  been  examined,'"]     An  enactment 
that  offenders  should  he  prosecuted  and  punished  for  past 
offences,  as  if  the  Act  against  which  thej  had  offended  had 
not  been  repealed,  was  held  to  create  no   fresh    power  to- 
punish,  but  only  to  preserve  that  which  before  existed  ;  and 
not  to  authorize  punishment  after  the  Act  which  created  the 
offence  had  ceased  to  exist  {a).     [But  a  saving  of  "  all  rights 
of  suit  or  prosecution  under  any  prior  act,  on  account  of  the 
doing  or  committing  of  any  act  hereby  prohibited,"  was  held 
to  embrace  offences  committed  previously  to  the  passage  of 
the  repealing  act  under  a  previous  law  repealed  by  it."     A 
saving  clause  in  an  amendment  that  the  amended  law  shall 
not  apply  to  trials  for  offences  committed  before  its  passage 
continues  the  old  law   as  to  those  offences."     A  saving  of 
"  pending  prosecutions  and  offences  theretofore  committed," 
in   an  act  which  took  effect  September  19,  1881,  saved  a 
prosecution  for  a  crime  committed  August  15,  1S81,  though 
the  indictment  was  not  found  until  September  22,  1881," 
But  a  saving  of  any  prosecution  pending  at  the  date  of  the 
passage  of  the  repealing  law  does  not  apply  to  a  case  where 
the  prosecution  is  closed,  and  judgment  and  sentence  have 
been  pronounced,  but  the  day  for  its  execution   not  fixed.'" 
And  obviously,  where,  in   1840,  a  person  committed  what, 
under  the  act  of   1839,  then  in  force,  was   murder;  and   in 
1843  the  act  of  1839  was  repealed  with  a  saving  as  to  crimes- 
already  committed  under  it;  and  in  1851  the  act  of  1843  was 
repealed  by  the  adoption  of  a  code  which  saved  the  right  to 
punish    offences   against    any  statute   repealed  by  it,  there 
could  be  no  conviction  or  punishment  for  the  offence  com- 
mitted against  the  act  of  1839,  because  the  code  did  not 
repeal  that  act."] 

«»  Smith  V.  Banlcer,  3  How.  Pr.         "  Sanders  v.  State,  77  Tnd.  227. 
(N.  Y.)  142  ;  Governor  v.  Howard,  ~*  Aaron  v.  State,  40  Aia.  807. 

1  3Iurpb.  (N.  C.)4G5;  The  Irresis-         "  Jones  v.  State,   1  Iowa,  395. 

tible,  7    Wheat._  551.  Of  course,  the  right  to  punish  an 

''"  Ante,  §  180.  offence  against  a  repealed  statute. 

{a)   The    Irresistible,    7    Wheat,  being  reserved,  fails  with  thc' repeal 

551. _     Comp.  H.  V.  Smith,  1   L.  &  of    llie   reserving   act:    Ibid.     As. 

C    131,  31  L.  J.  iM.  C.  105.  to  the  effect  of  a  general  act  saving- 

'' U.  S.  V.  Kohustamm,  oBlatchf.  actions,  etc..    under  repealed  stat^-- 

222.  utes,  see  Files  v.   Fuller,  44  Ark. 

'■-'  People  V.  Gill,  7  Cal.  356.  273,  ante,  §  173,  aote.     Such  gc  i- 

44 


CDO  REPEAL  [§  485 

§  485.  Effect  of  Savings  of  Civil  Rights  and  Procedure. — Under 
earlier  friendly  societies'  Acts,  claims  against  a  society  could 
be  enforced  only  by  suing  its  officers.  The  25  &  26  \rict. 
•c.  87,  repealing  those  Acts,  provided  for  the  incorporation 
■of  the  societies,  and  provided  also  that  all  legal  proceedings 
then  pending  against  an  officer  on  account  of  a  society  might 
be  prosecuted  by  or  against  the  society  in  its  registered  name, 
without  abatement.  But  the  Act  made  no  provision  respect- 
ing the  recovery  ot"  claims  which  were  then  pending,  but 
which  had  not  been  sued  for.  It  was  held  that  neither  the 
officers  (a),  nor  the  society  itself,  in  its  new  corporate 
capacity  {h),  could  be  sued  in  respect  of  such  claims  ;  but 
that  the  individual  n)embers  of  the  society  were  liable  to  be 
sued  for  them  (c).  [Under  an  act  amending  the  charter  of 
u  city  and  restricting  its  right  to  make  appropriations,  but 
providing  that  nothing  in  the  act  should  in  any  measure 
affect  or  impair  proceedings  had  under  the  previous  law,  or 
any  rights  or  privileges  acquired  thereunder,  it  was  held  that 
the  city  auditor  was  bound  to  issue  the  warrants  required  by 
an  ordinance  appropriating  money  for  the  ensuiiig  year, 
passed  before  the  adoption  of  tlie  amendment."  An  act 
repealing  a  statute  prescribing  a  method  for  the  re-assessment 
of  dr.mages  for  land  takeii  for  a  highway,  but  providing  that 
it  should  not  affect  tlie  validity  of  any  lay-out  of  any  highway 
theretofoi'c  made  under  existing  laws,  was  held  not  to  affect 
the  validity  of  a  re-assessment  just  previously  to  the  enact- 
ment made  out  by  the  jury  by  order  of  court,  but  not 
returned  to  the  court  .  and  accepted."  Under  a  general 
statutory  provision  that  the  repeal  of  an  act  shall  not  affect 
"  a  right  accruing,  accrued,  acquired,  or  established,"  it  was 
held  that  tlu;  repeal  of  an  act  alKnving  damages  for  injuries 
on  the  highway  did  not  affect  an  existing  cause  of  action, 
although  no  suit  therefor  had  been  commenced." 

ernl   statutes  prescribiii.^  Iho  cfTec  t  Q.  B.  (iC. 

of  legislation  are   elsewhere  called  {b)   Linton    v.   Blakency   Co-op. 

"aset  ofquasi-legislativebj'-laws,"  Soc.,  B  II.  6c  V.  SOo,  84  L.  J.  211. 

which,  left  unchanged  by  sueees  (c)  Dean  v.  Meliard,  15  C.  B.  K. 

sive    Legislatures,     are     virtually  S.  19.  31  L.  J.  282. 

re-enacted  and  continued  by  tlicni  :  '"^  Beatty  v.  Peoiile,  G  Col.  508. 

Gilleland  V.   Schuyler,  9  Kan.  569,  "     Downs    v.     Huntington,    35 

581.  Conn.   5S8. 

(o)  Toutill   V.  Douglas,  9'3  L.  J.  '^  Harris  v.  Townshend,  50  Vt. 


g  4SG,  487]  REPEAL.  <'>91 

§  486.  What  not  within  Saving  of  Existing  Rights,  etc. — [Tlie 
saving  of  existing  rights,  however,  does  not  include  every- 
thing that  may  be  cUiiined  by  a  party  as  a  matter  of  right. 
Thus,  where  an  act  gives  certain  rights  of  action  and  defence 
upon  grounds  of  public  policy,  e.  g.,  the  act  directed  against 
stock-jobbing,  no  vested  I'ights  arc  conferred,  and  the  repeal 
of  the  provision  takes  away  all  its  benefits  as  regards  con- 
tracts and  actions  existing  at  the  time  of  the  repeal."  Nor 
has  any  class  of  individuals  or  corporations  a  vested  right  in 
an  exemption  from  common  burdens  ;  and  lience  the  repeal 
of  a  proviso  in  favor  of  savings  banks  of  a  certain  class, 
exempting  them  from  the  payment  of  a  tax  npon  deposits  to 
which  the  act  made  other  banking  companies  liable,  makes 
them  liable  to  the  imposition.""  In  fact,  in  all  matters  of 
pure  legislation,  contract  and  vested  rights  not  resulting,  no 
one  Legislature  can  bind  another,  and  hence  the  repeal  of 
such  a  statute  puts  an  end  to  all  proceedings  pending  undeter- 
mined under  it.®'  Nor  can  any  person  invoke  the  aid  of  a 
repealed  statute  who  has  not,  previous  to  the  repeal,  ac(|uired 
vested  rights  under  it.*'^  And,  of  course,  a  saving  of  any 
rights  which  any  person  may  have  lawfully  acquired  to 
property  affected  by  the  act  cannot  aid  one  who  has  no  law- 
ful right  thereto,  nor  protect  a  possession  wroiigfullj-  acquired 
by  him.*^  Nor  is  the  continuance  of  a  case,  or  the  time 
within  which  pleadings  arc  to  be  filed,  among  "  rights 
accrued,"  within  the  meaning  of  a  clause  saving  such.*^ 

§  48  ( .  Saving  of  Prosecutions  and  Rights  not  a  Saving  of  Proce- 
dure.— [Even  where  prosecutions  and  rights  of  action  under  a 
repealed  enactment  are  preserved  b}'  a  saving  clause  in  the 
repealing  act,  yet,  after  the  latter  takes  effect,  they  must  be 
carried  on  and  enforced  in  conformity  with  the  provisions 
of  the  repealing  statute,  the  one  repealed  being  preserved 

71G.    See,  also,  Treat  v.  Strickland,  569  ;   Leathers    v.    Bank,    40   ]\Ie. 

28  Me.  234.      And   comp.   ante,   j  i58(i. 

481.  *■-'  Times  Pub.  Co.   v.  Ladomus, 

■"9  Washburn    v.    Franklin,    35  5  W.  N.  C.  (Pa.)  33. 

Barb.  (JST.  Y.)  599;  and  see  Kimbro  sa  While  v.  White,  3  Mete.  (Ky.) 

V.  Colsi-ate,  5  Blatchf.  223.  185. 

8«  B'k  for  Savinsis  v.  Collector,  3  *•*  Brotherton  v.  Brothertou,  41 

Wall.  495.              "  Iowa,  112.     And  see  §  285 

«•  Gilleland  v.  Schuyler,  9  Kan. 


(>\i'2 


REPEAL. 


[§488 


only  to  the  extent  of  fnrnishing  the  right  of  action  or  prose- 
cution, not  tlie  practice  or  mode  of  procedure  ;*°  so,  th:it^ 
where  a  statute  repealed  another  under  which  an  indictment 
had  been  found,  saving,  however,  the  right  to  proceed  for 
any  past  violation  of  the  repealed  statute,  the  manner  of  ap- 
plying for  a  change  of  venue  in  the  case,  was,  after  tlie  re- 
pealing act  took  effect,  held  governed  by  its  provisions..** 
And  even  a  saving  of  rights  accrued  or  established,  and  of 
proceedings,  suits  or  prosecutions  commenced  before  the 
repealing  act  shall  take  effect,  but  omitting  to  jirovide  that 
such  suits,  etc.,  shall  proceed  according  to  the  law  under 
which  they  were  commenced,  was  held  not  to  ])rotect  the 
same  against  the  effect  of  the  act  as  to  procedure.*"] 

§  488.  Effect  of  Repeal  on  Contracts  in  Violation  of  Statute 
Repealed. — If  a  contract  was  illegal  when  it  was  entered 
into,  and  the  statute  which  made  it  so  is  afterwards  repealed, 
the  repeal  will  not  give  validity  to  the  contract,  unless  it 
appears  that  the  re])ealing  enactment  was  intended  to  have  a 
retrospective  o}>cration,  and  thus  to  vary  the  relation  of  the 
parties  to  each  other  ((/).  [And  conversely,  an  agreement 
being  legal  when  entered  into,  but  by  a  subsequent  statute 
rendered  illegal,  acts'  done  under  it  while  it  was  legal,. 
remain  legal.*"] 


^5  Farmer  v.  People,  77  111.  323. 

**  Ibid.;  and  see  Lauirlilin  v. 
Com'th.  13  Bush  (Ky.)  261.  But 
sec  Dobbins  v.  Bank,  112  III.  553, 
where,  existing  rights  under  a 
repealed  statute  being  saved  by  the 
repealing  act,  it  was  held  that  the 
earlier  act  applied  to  suits  pending 
at  the  time  of  tiie  passage  of  the 
later, — Scott,  Walker  and  Dickey, 
JJ.,  diss. 

^^  People  V.  Livingstone,  6 
Wend.  (N.  Y.)  526.  See  this  case, 
ante,  §  290.  The  New  Jersey  Revis- 
ion, p.  1120,  provides,  that,  where 
no  new  remedy  has  been  given  for 
the  enforcement  of  a  right  accrued 
under  a  statute  that  is  repealed,  the 
old  remedy  remains  ;  and  tiiis  is 
said  to  betiie  case  where  the  repeal 
IS  by  force  of  a  constitutional  pro- 
vision :  Wilson  v.  Herbert,  41  N. 
J.  L.  454.  And  see,  as  to  saving 
effect  of  §  1,  Kan.  Gen.  St.  998,  in 


civil  and  criminal  cases:  State  v. 
Boyle,  10  Kan.  113  ;  State  v.  Craw- 
ford, 11  Id.  32. 

(a)  Jaques  v.  Withy,  1  11.  Bl. 
65  ;  Hitchcock  v.  Wa3^  6  A.  &  E. 
943.  Comp.  Hodgkiuson  v. 
Wyatt,  4  Q.  B.  749.  [JMilne  v. 
Huber,  3  McLean,  212;  Decell  v. 
Lewenthal,.  57  IMiss.  331  ;  Anding 
v.  Lew,  Id.  51  ;  Roby  v.  West.  4 
N .  II.  285  ;  Banshor  v.  Mansel,  47 
Me.  58.  But  see  Centra!  IVk  v. 
Empiie  Stone  Co.,  26  Barb.  (N.  Y.) 
23,  where  the  rejiealcd  act  waa 
merely  a  measure  of  public  policy. 
A  contract  being  illegal  by  reason 
of  a  penalty  imi><)se(l  by  law  upon 
the  act  (jonlracted  for,  is  not  ren- 
dered legal,  asbet\ve(!n  the  parties, 
by  a  remission  by  tiu!  government 
of  the  penalty  :  Petrel  Guano  Co. 
V.  Jarnette,  25  Fed.  Rep.  675.] 

68  Bennett  v.  Woolfolk,  15  Ga. 
213.     See  ante,  §  462. 


f  §  489,  490]  REPEAL.  ^>93 

§  489.  Time  when  Repeal  Takes  Eflfect.— TllC  13  &  14  Vict. 
c.  21,  s.  6,  decliires  that  when  any  Act  repeals  another  in 
whole  or  part,  and  substitutes  some  provision  or  provisions  in 
lieu  of  the  provision  or  provisions  repealed,  the  latter  remain 
in  force  until  the  substituted  provision  or  provisions  come  into 
operation  by  force  of  the  last-made  Act.  This  provision  is 
only  declaratory  of  the  common  law  rule  (a).  [And  the  rule 
is  the  same,  thou<>:h  the  repeal inpj  clause  use  the  present 
tense ;'"  for  an  act  speaks  as  of  the  time  of  its  going  into 
effect ;""  so  that  •'  heretofore,"  or  '•  hereafter,"  refers  to  the 
date  when  the  act  goes  into  effect,  not  the  time  of  its  final 
passage."  On  the  other  hand,]  if  a  temporary  Act  be 
continued  by  a  subsequent  one,  or  an  expired  Act  be  revived 
by  a  later  one,  all  infringements  of  the  provisions  contained 
in  it  are  breaches  of  it  rather  than  of  the  renewing  or  reviving 
statute  (b). 

§  490.  Re-enactment  not  a  Repeal  in  Spite  of  Express  Repealing 
Clause. — [It  seems,  indeed,  to  be  the  general  understanding 
that  the  re-enactment  of  an  earlier  statute  is  a  continuance, 
not  a  repeal  of  the  latter,  even  though  the  later  act  expressly 
repeals  the  earlier.  The  mere  re-enactment  of  an  existing 
lavv,  in  the  same  or  substantially  the  same  terms,  without 
words  of  repeal,  and  in  the  absence  of  conflict,  or  an  intention 
to  supersede,  does  not,  of  course,  necessarily  repeal  the  old 
law.®*     But  even  a  repealing  act  re-enacting  the  provisions 

(a)  Per  CM/*,  in  Butcher   v.  Hen-  435,   as    also  the   word   "now": 

derson,  L.  R.  3  Q.  B.  338.     LSt'ind-  Clark  v.  Lord,  20  Kan.  390,  396. 

ino-  V.  Alford,  1  Pick.  (Mass.)  33  ;  Consequently,  where  statutes  were 

McAriluu-   V.    Franklin,    16   Ohio  held  to  take  effect  on  the  tirst  day 

St.  193  ;  Moore  v.  Houston,  3  S.  &  of  the  session,  an  act  passed  at  a 

R.  (Pa.)  169,  185.     And  see  P.  &  A.  session    beginning  in   November, 

Tel.    Co.  V.  Coiu'th,  ante,   ^  483.]  18'27,  to  take  elfect  on  .January  15, 

89  Lynor  v.  State,  8  Ind.  490.  "  next,"    but   not   approved   until 

90  llicc  V.  Ruddiman,  10  Mich.  January  7,  1828.  was  \w\A  never- 
125.  It  has  been  said  tiiat  a  sav-  theless  to  go  into  operation  on 
■ing  clause  in  a  repealing  act  relates  January  15,  1828:  ^'Veeks  v. 
to  tiie  time  of  its  passasie.  not  of  Weeks,  5  Ired.  Eq.  (N.  C.)  111. 
•its  taking  effect,  though  the  act  Comp.  Fosdick  v.  Perrysburg,  14 
take  effect   from  the  first  moment  Ohio  St.  472,  ante,  §  33. 

<)f  the  day:  Re  Ankrim,  3  McLean,  {!>)  R.    v.   IMorgan,  3  Stra.  1066  ; 

385  ;  Re  Richardson,  3  Story,  571.  Shipman  v.  Uenbest,  4  T.  R.  109  ; 

But  sec  contra,  as  to  an  act  saving  Dingley  v.    Moor,  Cro.   Eliz.   750. 

riglits  at  the  date  of  its  passage  :  ^'-  See  Alexander  v.  St^ite,  9  Ind 

Rogers  v.  Vass,  6  Iowa,  405.     ""  3;]7  ;  Cordell   v.    State,  "«  Id.   1; 

91  Charless  v.  Lamberson,  1  Iowa,  Kessler  v.   Smith,  66  N     C.  154  ; 


094  REPEAL.  [§    491 

of  the  repealed  statute,  in  the  same  words,  is  construed  to 
continue  tlicm  in  force  without  intennission  ;  tlie  repealing 
and  reenacting  provisions  taking  effect  at  the  same  time." 
So,  it  was  held,  that,  where  an  act  repealing  another  which 
provided  for  the  appointment  of  certain  officers,  instantly, 
by  the  second  section,  re-enacted  the  repealed  act,  the  repeal 
was  rendered  inoperative,  the  former  law  left  in  for(;e,  and 
the  officers  appointed  under  the  same,  wliose  terms  of  office 
had  not  expired,  remained  in  ofHce."'  So  the  repeal  of  a 
general  corporation  law  l)y  a  statute  substantially  i-e-enacting 
and  extending  its  provisions,  does  not  terminate  the  existence 
of  corporations  formed  under  it,  but  is  to  be  regarded  as  a 
continuance,  with  modifications,  of  the  old  law."^  The  prin- 
ciple has  been  applied  also  to  a  revision  which  repealed  the 
acts  collated  and  consolidated,  but  immediately,  in  its  own 
provisions,  re-enacted  them  literally  or  in  substance,  so  that 
there  was  never  a  moment  when  the  repealed  acts  were  not 
practically  in  force."*  So,  the  repeal  and  re-enactment,  in  a 
revision  of  laws,  of  a  statutory  provision  authorizing  a  town 
to  make  a  certain  by-law  was  held  not  to  affect  the  validity 
of  the  by-law."'  And  it  has  been  applied  to  criminal  statutes, 
so  as  to  permit  a  conviction  for  an  offence  against  the  re- 
enacted  old  law,"'  even  where  the  re-enacting  law  undertook 
to  repeal  it ;""  the  re-enactment  being  construed  a  continu- 
ance. 

§  491.  Limits  of  this  Rule. — [But  the  effect  seems  to  be 
different  where  a  period  of  time  has  elapsed  between  the 
re})eal  and  the  re-enactment.       Thus,  an  act  passed  in  1873 

nor  necessarily   the    re-cnaetnient  JolilTe,  2  Wall.  450,  45G  ;   and  see 

of  a  former  section  of  a  statute  in  ante,  ^  104. 

a  later  section  :  Martindale  v.  Mar-  '-"i  ISIiddkston  v.  R.  II.  Co.,  26  N. 

lindale.  10  Ind.  560,  cit.  Ale.xander  J.   Eq.    269  ;  Scbeftels  v.  Tabert, 

V.     State,      sdpra  ;      Cheezem    v.  46    Wis.    489  ;    and   see   Kallin   v.. 

State,  2  Id.  149.  Ferst,  55  Ga.  546,  as  to  U.  S.  Rev. 

^^  Fullerton   v.   Spring,    3  Wis.  Stat. 

667  ;   Laudc   v.   Ry.    Co.,    83    Id.  ^^   Lisbon   v.    Clarke,   18  N.  H. 

640.  284.     Similarly  it  was  beld  tliat  an 

^*  State   V.    Baldwin,   45   Conn.  ordinance  i)assed  by  a  city  under  a 

184.  certiun  sectifin  of  its  cbarter  was 

'■^■'  United   Hebrew  Benev.  Ass'n  not   affected   by  a   repeal   of   that 

V.  Rcnsliimol,  180  Mass.   825,  827,  section  :   Cbamberlain    v.    Evans- 

cit.    Wriirbt    v.    Oakley,    5    Met.  ville,  77  Ind.  542. 

(Mass.)  400,  406  ;  Steamsb.  Co.  v.  '■'"  State  v.  Cumber,  37  Wis.  298- 

•'9  State  V.  Wisb,  15  Neb.  448.. 


§  !i:92]  REPEAL.  ()95 

required  railroad  companies  to  fence  when  ordei-ed  by  com- 
missioners. A  company  was  ordered  to  fence.  The  act  was 
re])oaled  in  1874.  Upon  its  re-enactment,  in  1875,  it  was 
hekl  that  the  dutv  to  fence  iindor  the  order  terminated  with 
the  repeal,  and  was  not  revived  by  the  re-enactment.""'  "In 
this  respect  it  stood  as  if  no  duty  to  fence  had  previously 
existed  ;  and  that  duty  could  only  come  into  existence  hy  the 
combined  force  of  the  law  of  1875,  and  of  an  order  under 
and  in  ac(;ordance  with  it.'""'  And  even  where  the  re-enact- 
ment is  simultaneous  with  the  repeal,  and  in  the  same  terms 
with  the  previous  law,  a  repeal  of  the  latter  will  be  held  to 
take  place,  (in  the  al)sence  of  express  repealin<^  words,  and  in 
the  face  of  statutory  rule  of  construction  requiriiii^  provisions 
of  any  statute,  so  far  as  they  are  the  same  as  those  of  any 
prior  enactment,  to  be  construed  as  a  continuance  of  such 
provision  and  not  as  an  amendment,  unless  such  construction 
would  be  inconsistent  with  the  manifest  intention  of  the 
Legislature,  etc.,)  where  the  former  statute  has  wholly  accom- 
plished its  purpose  and  exhausted  its  force."'^] 

§  492.  Effect  of  Repeal  of  Act  Incorporated  by  Reference  in 
Another. — Where  the  provisions  of  a  statute  are  incorporated, 
by  reference,  in  another  ;  [where  one  statute  refers  to  another 
for  the  powers  given  or  rules  of  procedure  prescribed  by 
the  former,  the  statuce  or  provision  referred  to  or  incorpor- 
ated becomes  a  part  of  the  referring  or  incorporating 
statute ;'"'  and  if]  the  earlier  statute  is  afterwards  repealed, 
the  provisions  so  incorporated,  [the  powers  given,  or  rules  of 
procedure  prescribed  by  the  incorporated  statute,]  obviously 
continue  in  force,  so  far  as  they  form  part  of  the  second 
enactment  (a).     Thus,  when  the  32  &  33  Vict.  c.  27,  enacted 

'^^  Kane  V.  R.  R.  Co.,  49  Coun.  [Spriuff,  etc..  Works  v.  San  Fran- 

139.  Cisco,  23  Cal.   434  ;    Sika  v.  K.  R. 

101  lb.,  at  pp.  140,  141.  Co.,  21  Wis.  370.     So,  a  local  and 

'"'-  Emporia  v.  Norton,  1(5  Kan.  special  act,  which,  hy  reference, 
236.  e.  (/.,  an  act  authorizinii;  an  adopts  provisions  relating  to  pro- 
appropriation,  validating  prior  cediu'e  from  an  existing  general 
dcl'eclive  acknowledgments,  or  law,  is  not  necessarily  abrogated 
irregular  tax  proceedings :  lb.  or    affected     by     the    subsequent 

'o'^  Turney  v.  Wilton,"3(>  111.  SS.j;  repeal  of  the  latter:   Schwenkc  v. 

Niines  V.  Welliseh,  12  Bush  (Ky.)  H.  R.  Co.,  7  Col.   512.      In  Now 

363.  York  it  was  enacted  by  Laws  1880. 

(a)  R.  V.  Stock,  8  A.   &  E.  405  ;  ch.  245,  that    "the  repeal  of  any 

R.  V.  Merionethshire,  6  Q.  B.  343.  provision    of    the     existing    laws 


606  uKPKAi..  [§  493 

that  certain  provisions  as  to  appeals  to  Quarter  Sessions 
comprised  in  the  9  Geo.  4,  c.  61,  should  liave  efleet  respecting 
the  grant  of  certificates  under  the  new  Act,  and  the  35  &  36 
Vict.  c.  94,  repealed  the  Act  of  Geo.  4,  it  was  held  that 
those  provisions  remained  in  full  force,  so  far  as  they  formed 
part  of  the  32  &  33  Yict.  {a).  The  9  Geo.  4,  c.  40,  s.  54, 
empowered  justices  of  the  county  where  a  prisoner  was 
detained  in  custody,  who  had  been  acquitted  of  felony  on 
the  ground  of  insanity,  to  determine  liis  settlement,  and  to 
order  his  parish  to  pay  such  a  sum  as  a  Secretary  of  State 
should  direct,  for  his  maintenance;  and  the  Act  contained 
also  provisions  with  reference  to  appeals  frotn  such  orders. 
The  3  &  4  Vict.  c.  54,  s.  7,  after  reciting  the  above  section, 
repealed  so  much  of  it  as  related  to  the  Secretary  of  State, 
and  enacted  that  the  justices  should  order  the  payment  of 
such  sum  as  they  should,  themselves,  direct.  Five  years 
later,  the  Act  of  Geo.  4  was  totally  repealed.  It  was  held 
that  the  justices  had  authority  to  make  the  order  under  the 
Act  of  3  &  4  Yict.  {h),  and  that  perhaps  even  the  right  of 
appeal  had  been  impliedly  preserved  {c). 

§  493.  [But,  when  the  ijicorporating  act  does  not  in  terms 
declare  that  the  mode  of  procedure  prescribed  by  another 
act,  not  specifically  referred  to,  but  being  then  the  only  one 
established  by  law  and  incorporated  by  the  general  reference 
"the  same  as"  in  the  case  provided  for  by  the  earlier  act, 
it  is  said  to  be  intended  "  as  a  rule  for  future  conduct,"  a 
rule  "  always  to  be  found,  when  it  is  needed,  by  reference 
to  the  law  .  .  existing  at  the  time  when  the  rule  is  in- 
voked.""" And  similarly  in  the  case  of  a  statute  which  pro- 
hibited contests  of  speed  of  animals,  etc.,  "  excepting  such  as 
are  by  sjiccial  laws  for  that  purpose  expressly  allow^ed,"  it  was 

which  has    been   amended    by    a  (.v)  R.  v.    Smith,  L.  R.  8  Q.   B^ 

Kubsoquent  provision  of  those  hi \vs,  146.      Comp.  Bird  v.  Adcoclv.  47 

not    expressly    lepealed    by     this  L.  J.  M.  C.  133. 

act,  does  not  affect  the  subsequent  (b)  R.  v.  Stepney.  L.  R.  9  Q.  B. 

provision."     It  was  held,  in  Wcad  383. 

V.    Cantwell    (N.    Y.),     11    Ceutr.  (c)  Per  Blacldmru.  J.,  lb.      See 

Rep.  308.  that  this  enactment  liad  R.  v.  Lewes,  L.   R.   10  Q.    B.  579. 

no  eilcct  (ipon  the  rule  as  to  repeal  [See  ante,  §  233.] 

by  Implication   by  a  later   statute  'O'^  Kugler's  Apn..  55  Pa.  St.  133, 

eoverina;  tiie  wiioie  subject  matter.  125.     See  infra,  note  lOS. 

Comp.  i^i;  I'Jl,  201.] 


§  494]  REPKAL.  G97 

held  that  those  might  inchide  hiws  passed  subsequently  to  that 
act.'"  It  may  be  added  hero,  that  it  has  been  doelared  that 
a  reference  statute  embi-acos  only  the  general,  not  the  par- 
ticular powers  granted  by  the  statute  referred  to  ;""  that  a 
term  referred  to  must  be  understood  in  its  primary  sense, 
as  expressly  defined,  and  not  in  an  assimilated  interpreta- 
tion, especiallj'  where  such  express  meaning  will  accomplish 
the  full  design  of  the  framers  ;'"  but  that,  on  the  other 
hand,  where  the  provisions  of  a  statute  passed  with  special 
reference  to  a  jnirticular  subject  are,  by  another  statute,  in 
general  tei-nis,  applied  to  another  and  in  its  nature  essenti- 
ally different  subject,  the  terms  so  incorporated  are  to  be 
construed  in  such  manner  as  to  be  appropriate  to  the  new 
■subject-matter,  and  the  adoption  extends  only  to  such  pro- 
visions of  the  original  statute  as  arc  applicable  and  appro- 
priate to  the  same.'"*] 

§  494.  Non-user  has  not  Effect  of  Repeal. — A  laW  is  not  re- 
pealed by  becoming  obsolete  {a).  Thus,  trial  by  battle,  with 
its  oaths  denying  resort  to  enchantment,  sorcery,  or  witch- 
craft, by  which  the  law  of  God  might  be  depressed  and  the 
law  of  the  devil  exalted  (J),  though  the  trial  by  grand  assize, 
introduced  in  the  time  of  Henry  2,  had  practically  superseded 
it  for  centuries,  was  still  in  force  in  1819  (c).  The  writ  of 
-attaint  against  jurors  for  a  false  verdict  was  not  abolished 
until  1825  {d).  Until  1789,  the  sentence  on  wonjen  for 
treason  and  husband-murder  was  burning  alive;  thouofh  in 
practice  ladies  of  distinction  were  usually  beheaded,  while 
those  of  inferior  rank  were  strangled  before  the  fire  reached 

"5  Harris    v.  Wliite,    81  N.    Y.  at  tiie  time  the  right  to  distribution 

532.  miiibt  become  vested.     See    ante, 

'o«  Exp.  Greene,  29  Ala.  52.  §§102,  108,  493. 

"^   Cruder  v.    Cniger,    5  Barb.  '(«)   White  v.  Boot,  2  T.  R.  274  ; 

(N.  Y.)  225.  per     Ilullock,    J.,    in     Tyson    v. 

"8  Jones  V.  Dexter,  8  Fla.  276.  Thomas,    McCl.   &    Y.    127  ;    per 

An  adoption  of   the   provisions  of  Lord   Kenyon  in  Leii^h  v.  Kent,  3 

the  "law  "  on  a  particular  subject  T.  B,.  362  ;    R.   v.  Wells,    4  Dowl. 

is  broader  and  more  general  than  562  ;  The  India.  33  L.  J.  P.  M.  & 

"act :"  lb.    In  this  particular  case,  A.  193  ;  Ilibhert  v.  Purchas,  L.  R. 

an   act  adoplinsr  the  provisions  of  3  P.  C.  650. 

the    law    regulating    descents     as  {b)   2   Hale,    P.     C.    233  ;   3    Bl. 

furnishing  the  rule  for  the  distri-  Comm.  337. 

butiou   of  personal   property,    was  (c)  59  Geo.  3,  c.  46.     Ashford  v. 

held  intended  to  refer  to  any  law  Thornton,  1  B.  &  A.  405. 

of  descent  which  might  be  in  force  ((/)  6  Geo.  4,  c.  50,  s.  60. 


608  KKPEAL.  L§  •^*^^- 

tlieiii  {a).  Drawing  and  quartering  was  still  part  of  the 
sentence  for  that  offence  until  1870.  Until  1844-,  it  was  an 
indictable  offence  to  sell  corn  in  the  sheaf  before  it  had  been 
thrashed  out  and  measured  (^);  an  Irish  xlct  (28  Eliz.  c.  2), 
against  witchcraft,  was  still  in  force  in  1821  (<?) ;  and,  as  late 
as  183G,  insolvents  in  Scotland  were  bound  to  wear  a  coat 
and  ca|)  half  yellow  and  half  brown  (d).  Eavesilroppers,  or 
such  as  listen  under  walls  or  windows  or  the  eaves  of  a  house, 
to  hearken  after  discourse,  and  thereupon  to  frame  slanderous 
and  mischievous  tales,  are  still  liable  to  fine  (e).  A  common 
scold  seems  still  subject  to  be  placed  in  a  certain  engine  of 
correction  called  the  trebivcket  or  cucking-stool,  or  ducking- 
stool,  and,  when  placed  therein,  to  be  plunged  in  the  water- 
for  her  punishment  (/).  To  destroy  any  of  the  Queen's 
victualling  stores  appears  to  be  still  a  capital  offence  (g).  It 
is  still  a  temporal  and  indi<;tal)le  offence  to  deny  the  being  or 
providence  of  the  Almighty,  or,  if  the  offender  was  educated 
in,  or  ever  professed  the  Christian  religion,  to  deny  its  truth, 
or  the  divine  authority  of  the  Holy  Scriptures  (A). 

[The  same  principle  is  recognized  in  America.'"^  Nor  can 
a  statute,  e.  g.,  of  limitations,  be  suspended  by  and  during  the 
progress  of  a  war,  without  legislation  to  that  effect.""] 

§  495.  Qualification  of  this  Rule.— But  as  usage  is  a  good 
interpreter  of  laws,  so  non-usage  lays  an  antiquated  Act 
open  to  any  construction  weakening,  or  even  nullifying  its 
effect  {I).  [It  is  probably  in  this  sense  that  it  may  be  true 
that  long  non-user  may  repeal  an  act,  especially  where  the 

(a)  3  Inst.  211  ;  Fost.  Cr.  L.  268.  Crim.    L.,    Vol.    2,    pp.    459,    48:5, 

(f>)  3  Inst.   197  ;  7  &  8  Vict.  c.  493. 

24.  '"'   See  Kitchen    v.    Smith,    101 

(c)  1  &  2  Geo.  4.  c.  18-  Pa.  St.  452;  Homer  v.  Com'th,  lOG 

(d)  6  &  7  VV.  4,  c.  56.  .s.  18.  Id.  221  ;  Com'lh  v.  Hoover,  1  Bro. 
(r)  2  lliiwk.  c.  10,   s.   58,   4  Bl.  (Pa.)   25;    Bish.,    Wr.    L.,    ^   149. 

Comm.     166  ;    Burn's,   J.,    Eaves-  Comp.,  however,  infia. 

(Iroppers.     [See  Convth  v.  Lovelt,  '"^  Zacliarie   v.  Godfrey.  50  111. 

4  Clark  (Pa.)  5.]  186  ;  Smith  v.  Stewart,  21  La.  An. 

(/)   1    Hawk.  c.  75,  s.   14,  4  Bl.  67.     The  partial  oblkeration  of  the 

Comm.  168  ;  Burn's,  .1.,  Nuisance,  enacting  clause  by  mutilation,  not 

s.  4.     See  infra,  note  115.  appeaiinii;  to  be  tlone  by  legislative 

if/)   12  Geo.    3,  0.   24,   s.    1  ;  see  authority,    will    not  defeat   an  act 

Mr.  Gorst's  speech  in  IT.  of  Com.,  regularly  passed  :  State  v.  Wright, 

«ih  March,  1.S82.  14'Ore<r.  ;365. 

(A)  9  &  10  \V.  &  M.  c.  32.      See,  (i)  See  ex.  gr.  Leigh  v.  Keut,  3: 

ul-o,   .Mr.    .lust ice   Stephen's  Hist.  T.  li.  364. 


§  496]  COMME^'CEMENT.  090 

current  of  legislation  shows  that  the  Legislature  regarded  it 
as  no  longer  in  force."']  And  penal  laws,  if  the}'  have  been 
sleepers  of  long,  or  if  they  be  grown  unlit  for  the  present 
time,  should  be,  by  wise  judges,  confined  in  the  execution  («). 
[Thus,  it  is  said,  an  act  may  become  inoperative  from  non-user 
or  disuse  of  the  punishment  prescribed  ;"^  and  it  has  already 
been  seen  that  a  change  of  circumstances  may  lead  the  court 
to  construe  provisions  as  directory  which  might  otherwise 
not  be  so,'"  and  that  a  course  of  legislation  rendering  certain 
provisions  of  statutes  purposeless  may  j-)ractically  render  them 
inoperative,'"  "  when  their  objects  vanish  or  their  reason 
ceases.'""] 

§  496.  Commencement  of  Statutes.  Ancient  Rule. — Down  to 
the  reign  of  Henry  7,  the  statutes  passed  in  a  session  were 
sent  to  the  sheriff  of  every  county  with  a  writ,  requiring  him 
to  proclaim  them  throughout  his  bailiwick,  and.  to  see  to 
their  observance.  Some  Acts  (the  Triennial  Act  of  1641, 
for  example,)  contained  a  section  requiring  that  they  should 
be  read  yearly  at  sessions  and  assizes.  But  proclamation, 
or  any  other  form  of  promulgation,  was  never  necessary 
to  their  operation  {h).  Everyone  is  bound  to  take  notice 
of  that  which  is  done  in  Parliament.  As  soon  as  the 
Parliament  has  concluded  anything,  the  law  intends 
that  every  person  has  notice  of  it ;  for  the  Parliament 
represents  the  body  of  the  whole  realm,  and  therefore 
it  never  was  requisite  that  any  proclamation  should  be  made ; 
the  statute  took  effect  before  (c). 

'"  Hill  V.   Smith.  1  Morr.  (la.)  remained    indictable    in   Penus}'!- 

70.       See,   also,   Watson   v.    Blay-  vania  (See,  also,  Com'tli  v.  Molin. 

lock,  2  Mill  (S.  C.)  351  ;  Canady  v.  53  Pa.  St.   243),  the  dncking  slool 

George.  G  Rich.  Eq.  (S.  C.)  103,  as  was  no  longer  the  pnnishment  for 

recognizing  a  repeal  by  nou-user.  her   offence,   but  line  or  line   and 

(a)  Lord  Bacon,  Essay  on  Judi-  imprisonment  at  the  discretion  of 

cature.  the  court. 

"'^  O'Hanloa  v.  Myers,  10  Rich.  (b)  In  France,  a  law  takes  effect 

L.  (S.  C.)  128.      But  see  .James  v.  only  from  the  date  of  its  insertion 

Com'th,  12  Serg.  &  R.  220.  in  the  Bulletin  des  Lois.     See  R. 

"3  Rodebaugh  v.  Sanks,  2  Watts  v.   3Iackenzie,  L.  R.  1   P.   C.   44'J. 

(Pa.)  9,  ante,  t^  85,  note  106.  In  ancient   Rome,   a  Seuatus  con- 

"■*  Ante,  ^  209.     See,  also,  Bish.,  sultum  had  no  force  till  deposited 

Wr.  L.,  iji  149.  in  tlie  Treasury :  Livy,  39,  4;  Suet. 

"3  Jumes  V.  Com'th,  12  Serg.   &  Aug.  94. 

R.    (Pa.)   220,    228  ;   where  it  was  (c)  Per  Thorpe.  C.  J.  (39  Ed.  3V 

held,  that,  whilst  a  common  scold  citctl  in  4  lust.  2(5. 


roo 


COMMKNCKMKNT. 


[§  497,  498 


§  497.  A  statute  takes  effect  from  tlie  first  uioment  of  the 
•day  on  which  it  is  passed,"*  unless  another  day  be  expressly 
named,  [and  then,  from  the  first  instant  of  the  day  named.'"] 
By  a  fiction  of  law,  however,  the  whole  session  was  supposed 
to  be  held  on  its  first  day,  and  to  last  only  that  one  day ;  and 
every  Act,  if  no  other  day  was  expressly  fixed  for  the  begin- 
ning of  its  operation,  took  effect,  by  relation,  from  the  first 
day  of  the  session."*  It  followed,  that,  if  a  statute,  passed  on 
the  last  day  of  the  session,  made  a  previously  innocent  act 
criminal  or  even  capital  {a),  all  who  had  been  doing  it  during 
the  session,  while  it  was  still  innocent  and  inoffensive,  were 
liable  to  suffer  the  punishment  prescribed  hy  the  statute  {b). 

§  498.  Modern  RiUe.  Fractions  of  Day.— But,  to  abolish  a 
■fiction  so  flatly  absurd  and  unjust  (c),  the  33  Geo.  3,  c.  13, 
enacted  that  the  clerk  of  Parliament  should  indorse  on  every 
Act,  immediately  after  its  title,  the  date  of  its  passing  and 
receiving  the  royal  assent.  This  indorsement  is  part  of  the 
Act  and  is  the  date  of  its  commencement,  when  no  other 
time  is  provided.  But  where  a  particular  day  is  named  for 
its  commencement,  but  the  roj'al  assent  is  not  given  till  a 
later  day,  the  Act  would  come  into  operation  only  on  the 
later  day  {d). 


"*' By  the  "passage  "of  an  act 
is  meant  the  conclusion  of  all  the 
constitutional  I'ornis  and  ceremo- 
nies requisite  to  make  the  act  a  law, 
imrluding  tiie  signature  of  tiie 
executive :  Warlmaii  v.  Philadel- 
phia, 33  Pa.  St.  20-3;  Hill  v.  State, 
5  Lea  (Tenn.)  725;  and  see,  also. 
State  V.   The  Banks,  13  Rich.   L. 

■  (S.  U.)  609  ;  or,  where  it  is  not 
appended,  the  final  passage  of  the 
act  over  a  veto,  or  the  dale  wlicn 
the  bill  becomes  a  law  by  expira- 
tion oi  the  period  allowed  the  execu- 
tive 1)3'  the  constitution  for  its 
return:  Logan  v.    Slate,   3   Heisk. 

■(Tcnu.)442.  Sometimes,  however, 
it  will  be  construed  to  mean  tin; 
date  of  its  faking  effect:  see  Char- 
less  V.  Lamberson,  1  Iowa,  435, 
ante,  §  480  ;  also  §§  181,  272. 

"■'  'I'ondinson  v.  Bullock,  L.  K. 
4Q.  B.  D.  230. 

"»  Hamlet  v.  Taylor,  5  Jones  L. 


(ISr.  C.)  36  ;  Smith  v.  Smith,  Mart. 
(N.  C.)  26  ;  Weeks  v.  Weeks.  5 
Ired.  Eq.  (N.  C.)  111.  See  this 
case,  ante,  §  489,  note  91. 

(«)  See  ex.  gr.  II.  v.  Thurston,  1 
Lev.  91 ;  Pi.  v.  Bailey,  1  R.  &  R. 
1. 

(b)  4  lust.  25;  1  Bl.  Comm.  70, 
note  by  Christian;  Attj'-Genl.  v. 
Panter,  6  Bro.  P.  C.  486;  Latless 
v.  Patten.  4  T.  R.  600;  and  the 
authorities  cited  in  1  Plowd.  79a. 
See  the  Brig  Ann,  1  Gallisou.  62. 

(c)  1  Bl.  Comm.  70/1. 

(d)  Burn  v.  Carvalho,  4  Nev. 
&  U.  893.  When  a  Bill  to 
continue  an  Act  which  is  to  expire 
in  the  same  session  does  not  receive 
the  royal  as.seut  until  the  Act  has 
expired,  the  continuing  Act  takes 
elTect  from  the  date  of  the  expira- 
tion; except  that  it  does  not  affect 
any  person  with  any  punishment 
for  any  breach  of  the  Act  between 


§408] 


COMMENCEMENT. 


7or 


[In  this  country,  an  act  takes  effect,  generally,  and  where  no 
other  time  is  fixed  by  constitution,  ^i-noral  law,  or  the 
particular  statute  itself,  from  the  time  of  its  pnssage.'"  And 
in  such  case,""  as  well  as  where  it  is  passed  to  take  effect 
upon,  or  from  and  after,  its  passage,  it  is  said  to  be  in  foi-ce  the 
whole  of  the  day  upon  which  it  was  finally  passed.'"  On 
the  other  hand,  where  an  act  was  to  take  effect  "  from  and 
after  "  its  passage,  the  day  of  passage  has  been  held  excluded.'** 
Or  that  phrase  has  been  held  to  give  the  statute  operation 
at  tlie  very  moment  of  its  approval,  and  to  permit,  in  order 
to  determine  a  right,  e.  g.,  to  an  office,  an  inquiry  into  that 
particular  moment.'"  And  in  general,  it  has  been  asserted,, 
that  the  fiction  that  an  act  goes  into  effect  on  the  first  instant 
of  a  day  must  give  way  to  considerations  of  justice  and  con- 
venience, and  the  presumption  against  retroaction  ;'^*  as 
where  the  act  imposes  penalties,'"*  or  ousts  an  established 
jurisdiction. '°° 


the  expiration  of  the  earlier  and  the 
passina;  of  the  later  Act:  48  Geo. 
3,  c.  106. 

^'^  The  word  "passage"  being 
understood  in  the  sense  above 
indicated :  ante,  §  496,  note  IIG,  and 
the  act,  in  the  interval  between  its 
final  adoption  by  the  Legislature 
and  approval  by,  or  passage  over 
the  veto  of,  the  executive  or  the 
expiration  of  the  time  allowed 
him  for  its  return,  having  no  effect 
u]ion  transactions  occurring  dur- 
ing tlwit  period:  Warlniau  v.  Phil- 
adelphia, 33  Pa.  St.  203;  but  see 
contra:  Dyer  v.  State,  1  Meigs 
(Tenn.)  237.  As  authority  for  the 
statement  in  the  text,  see,  among 
other  cases:  ]\Iatthew  v.  Zane,  7 
Wheat.  164;  The  Ann,  Gall.  62; 
.Johnson  v.  Merchandize,  2  Paine, 
601  ;  lie  Currier,  13  Baukr.  Reg. 
208;  13  Biss.  208;  Salmon  v. 
Buriiess,  1  Hugh.  356  ;  lie  Wynne, 
Chase  Dec.  227  ;  He  Richardson,  2 
Story,  571  ;  U.  S.  v.  Williams,  1 
Paine,  261  ;  Goodsell  v.  Boyuton,  2 
111.  555;  (also  as  to  Illinois:  Hickory 
V.  Ellery,  103  U.  S.  423;)  Temple 
v.  Havs,  1  Morr.  (la.)  9  ;  Kennedy 
V.  Palmer,  6  Gray  (Mass.)  316; 
Branch  B'k  v.  Murphv,  8  Ala.  119; 
Rathbone  v.  Bradford,  1  Id.  312  ; 
Slate  V.  Click,  2  Id.  26;  Taylor  v. 
State.    31    Id.    383;    Paikinson    v. 


State,  14  Md.  184;  Heard  v.  Heard, 
8  Ga.  380;  Smets  v.  Weathersbee, 
R.  M.  Charlt.  (6a.)  537;  State  v. 
The  Banks,  12  Rich.  L.  (S.  C.)  609; 
Hill  V.  State.  5  Lea  (Tenn.)  725; 
Dyer  v.  State,  1  JVIeigs  (Tenn.): 
237  (by  relation  to  the  "date  of  its 
passage);  Memphis  v.  U.  S.,  97. 
U.  S.  293;  Bish.,  Wr.  L.,  §  28,  and 
cases  there  cited. 

'■•"  See  Re  Williams,  6  Biss.  238; 
Re  Currier,  13  Id.  208;  Re  Howes, 
21  Vl.  6U>. 

'■^'  Arnold  v.  U.  S.,  9  Cranch 
104;  Weed  v.  Snow,  3  McLean, 
265;  Wood  V.  Fort,  42  Ala.  641; 
Re  Welman,  20  Vt.  653;  Arrow- 
smith  V.  Hamering,  39  Ohio  St. 
573;  ■\Iallory  v.  Hiles,  4Metc.  (Ky.) 
53;  Re  Currier,  13  Bankr.  Reg. 
208.  and  other  cases,  supra. 

'-'-  King  V.  Mooie,  Jeff.  (Va.)  9;. 
and  see  Koltenbrock  v.  Cracraft, 
36  Ohio  St.  584.  See,  also,  Bassett 
V.  U.  S.,  2  Ct.  of  CI.  448,  as  to  "  at 
the  date  "  of  passage. 

'■-3  People  V.  Clark.  1  Cal.  406. 

'-■*  See  Re  Richardson,  2  Story, 
571  ;  The  Ann,  Gall.  62;  Re 
Wynne,  Char.  Dec.  227  ;  Re  Ant- 
rim, 3  McLean,  2S5,  and  cases 
infra. 

'-^  Salmon  v.  Burajess,  1  Hugh. 
356;afrd  97  U.  S.  381. 

'•''   Kennedy  v.  Palmer,  6  Gray 


702  COMMENCEMENT.  [§§    499,   500 

§  499.  Po.stponement  of  Operation. — [All  act  IlUlJ  be  passed 
to  take  elfect  not  only  at  a  future  day  certain/"  but  also 
ni)on  the  happening  of  a  future  contingency.'"  In  the 
former  case,  the  act  takes  immediate  effect  on  the  day 
fixed  ;'*"  in  the  latter  ease,  wliere  an  act  directed  a  vote  to  be 
taken  "after  the  present  war  is  over,"  it  was  held  to  go  into 
effect  only  after  the  prochimation  of  the  President  of  the 
United  States  declaring  the  war  at  an  end  (Aug.  20,  186G), 
and  a  vote  taken  before  that  date  was  held  a  nullity.*'" 
Where  an  act  was  passed  amending  a  city  charter,  but  pi'o- 
viding  that  certain  sections  should  not  take  effect  until  ap- 
proved by  the  corporation,  the  proviso  was  held  to  operate 
merely  as  a  suspension  of  the  operation  of  the  act,  but  the  act 
itself  was  deemed  a  valid  law  immediately  upon  its  passage 
and  executive  approval.'"  And  until  the  day  when  an 
act  is  to  take  effect  an-ives,  the  law  has  no  force, "^  even 
as  notice  to  the  persons  to  be  affected  by  it.'^^ 

§  500.  Repugnant  Acts  Passed  Same  Day. — [Where  statutes 
are  held  to  go  into  effect  at  the  lirst  moment  of  the  day  of 
their  passage,  two  acts  passed  on  the  same  day  are  passed  at 
the  same  time  ;'^*  and  if  repugnant,  would,  therefore,  nullify 
each  other."^  If,  however,  of  two  such  acts,  one  is  to  take 
effect  immediately',  and  the  other  upon  a  future  day,  both 
being  amendments   of  a  general   body  of    statutes,  the  act 

(IMass.)  316.      And  see  The  Cottou  "i  ciurke  v.  Rochester,  2;i  Barb. 

Planter,  1  Paine,  23  ;   The  Enter-  N.  Y.)  446. 

prise.  Id.  32,  that  acts  of  congress  ^^-  Price   v.    ITopkin,    13    Midi, 

imposing    penalties   are   operative  318.     Consequently,  in  a  statute  to 

in  the  various  collection   districts  take  eflect  on  a  future  day,  a  pro- 

from  receipt  of   the  act  or   notice  vision,  <=.  ^.,  for  an  election,  to  take 

thereof  by  the  collector  from    the  place  on  an  earlier  day  is  a  nullity  : 

proper  de]ianment.      See,  on  this  People  v.  Johnson,  0  Cal.  073. 

subject,    as   to   which  no  rule  can  '"»  13  iMich.   318.     "Where  an  act 

be   said    to   be    lirndy  established,  passed  in  1854,  to  take  eireet  in  1856, 

Bish.,\Vr.   L.,  ^^  27-31.  made  an  act  punishable,  a  i)ers(>n, 

'-'  Sanders  v.  Ooni'th,  20  W.  N.  who,  in  1855,  did  the  thing  .so  pro- 

C.  (Pa.)  226.  hi'bitetl,    could    not    be    punisued 

'-*    Lothrop     V.     Stedinan,    42  under   the  law:  Stare  v.  Bond,  4 

Conn.  583  ;  The  Aurora,  7  Craneh,  Jones  L.  (N.  C.)  9. 

382.  '"^  Harrington  v.  Harrington,  o3 

'-»  Rice  V.  Ruddiman,  10  Mich.  Vt.  649. 

125  ;  ante,  §  405.  '■*=*  See  State  v.  Ilcidorn,  74  Mo. 

•"OConley  v.  Calhoun  Co.,  2  W.  410.       Comp.     Metrop.     B'd      of 

Va.  417.  Health  v.  Sehmades.   10  Abb  Pr. 

K  S.  (N.  Y.)  205. 


§501] 


JTJLIC  AND  J'lirVATE  ACTS. 


703 


taking  effect  last,  is  an  aniendincnt  of  that  body  as  amended 
by  the  one  taking  effect  lirst."" 

§  501.  What  Acts  are  Judicially  Noticed.  —[One  of  the  matters 
upon  which,  though  tlie  statute  be  silent,  the  Legislature 
must  be  understood  to  have  had  an  intention,  is  that  of  the 
manner  in  which  notice  is  to  be  taken  by  the  courts  of  the 
passage,  tenor  and  time  of  taking  effect  of  the  enactment. 
In  the  case  of  a  public  law,  which  "  must  be  taken  to  have 
been  passed  for  the  public  advantage,'""  it  is  obvious,  and 
therefore  the  universal  rule,  that,  in  order  effectually  to  serve 
that  purpose,  it  must  be  noticed  as  to  all  the  particulars 
mentioned,  and  applied  by  the  courts  without  being  pleaded, 
proved,  or  even  called  to  their  attention."*  On  the  other 
hand,  no  such  considerations  require  the  judicial  notice  of 
private  statutes,  which  are  passed,  not  for  the  public  advan- 
tage, but  for  the  benefit  of  those  who  obtain  their  enact- 
ment."' In  general,  therefore,  private  statutes  are  not  held 
to  imply  a  requirement  of  judicial  notice,  and  the  rule  is  the 
contrary  of  that  stated  as    to  public    acts.""     In    England, 


'^^  Harrington  v.  Harrington, 
supra. 

12''  Altrincham  Union  v.  Cheshire 
Lines  Committee,  L.  R.  15  Q.  B. 
D.  597,  603. 

138  See  U.  S.  V.  Harries,  2  Bond, 
211  ;  People  v.  Herkimer,  4  Cow. 
345  ;  Ross  v.  Reddick,  2  111,  73  ; 
Piorson  v.  Baird,  2  Greene  (la.) 
235  ;  Grisvvold  v.  Gallop,  22  Conn. 
208;  Horn  v.  R.  R.  Co.,  38  Wis. 
463  ;  Berliner  v.  Waterloo,  14  Id. 
378  ;  Canal  Co.  v.  R.  R.  Co.,  4 
Gill  &  J.  (JNId.)  1;  Hammond  v. 
Inloes,  4  Mil.  138  ;  State  v.  Jarrett, 
17  Id.  309  ;  Div'n  of  Howard  Co., 
15  Kan.  194  ;  Lane  v.  Harris,  16 
Ga.  217  (together  with  the  facts 
tliey  recite)  ;  State  v.  Bailey,  16 
Ind.  46  ;  Heaston  v.  R.  R.  Co.,  Id. 
275  ;  People  v.  Ilopt,  3  Utah,  396  ; 
Bish.,  Wr.  L.,  §  37,  and  cases 
intra.  Upon  the  principle  that 
joint  resolutions  of  the  Legisliiture 
are  to  be  regarded  as  of  equal  dig- 
nit}''  with  formal  statutes  :  Swann 
V.  Buck,  40  ]\Iiss.  268,  it  would 
seem  that  a  joint  resolution  of  a 
public  character,  e.  g.,  imposing  a 
particular  duty  upon  a  state  officer, 


should  also  be  judicially  noticed  : 
State  V.  Delesdenier,  7'  Tex.  76. 
But  see  Simmons  v.  Jacobs,  52 
Me.  147,  wheie  it  was  said  that 
courts  do  not  ordinarily  take  notice 
of  the  resolves  of  the  Legislature, 
unless  produced  in  evidence,  e.  g., 
a  resolve  making  up  the  pay-roll 
of  the  Legislature,  which  declared 
that  the  .session  commenced  on  a 
certain  day  and  ended  on  another 
specified  day.  The  court,  how- 
ever, in  that  case,  treated  the 
resolve  as  recognized.  That  reso- 
lutions of  municipal  councils,  at 
least  so  far  as  they  require  action 
by  the  executive  in  order  to  be 
carried  into  effect,  arc  subject  to 
the  same  rules  and  formalities, 
including  liability  to  veto,  as 
ordinances,  see  :  Sower  v.  Phila- 
delphia, ;f5  Pa.  St.  231  ;  Kepner  v. 
Com'th,  40  III.  124  ;  Wain  v.  Phila- 
delphia, 99  Id.  330. 

1-^3  Altrliu'ham  Union  v.  Cheshire 
Lines  Connnittee,  ubi  supra. 

'^0  See  Bretz  v.  New  York,  6 
Robt.  (N.  Y  )  325  ;  Broad  Str. 
Hotel  Co.  V.  Weaver.  57  Ala.  26  ; 
Perdicaris  v.  Bridge  Co.,  29  N.  J. 


704 


PUBLIC  AND  PKIVATE    ACTS. 


[§502- 


indeed,]  every  statute  passed  since  1850  is  a  public  Act  and 
judicially  noticed,  unless  the  contrary  be  provided  in  the 
statute  (a)  ;  [and  a  similar  rule  exists  by  virtue  of  statutory 
enactment  iu  some  of  the  states  of  the  Union,'"] 

§  502.  What  are  Public  Acta. — [The  general  rule  Concerning 
judicial  notice  being  as  stated,  in  respect  of  public  and 
private  statutes,  a  question  frequently  arises  as  to  what  is  and 
what  is  not  to  be  deemed  a  public  statute,  and  as  such  en- 
titled to  judicial  notice.  A  public  statute  is  said  to  be  such 
a  one  as  affects  the  ]>ublic  at  large,  whether  throughout  the 
entire  state,  or  within  the  limits  of  a  particular  locality,"" 
and  whether  its  operation  is  designed  to  be  perpetual,  or 
merely  temporary.'"  A  private  statute,  0!i  the  other  hand, 
is  one  that  relates  to  or  concerns  a  particular  person  by 
name,"*  or  something  in  which  certain  individuals  or  classes 
of  persons  are  interested  in  a  manner  peculiar  to  themselves, 
and  not  common  to  the  entire  community.'"  It  follows 
that  a  statute  may  be  perpetual  in  its  operation,  and  yet  be 
a  private  statute;'"  whilst  another  may  be  temporary'"  and 
local  in  its  operation,  and  yet  be  a  public  statute,'"  if,  with- 


L.  367;  Black  v,  Del.,  etc.,  Caiiul 
Co.,  24  N.  J.  Eq.  455,  480  ;  AUe- 
ghenj"  V.  Nelson,  25  Pa.  St.  3:)2  ; 
Hand}-  v.  R.  II.  Co.,  1  Phila.  (Pa.) 
31  ;  Com'th  v.  Co.  Comm'rs,  1 
Pittsb.  (Pa.)  249  ;  Working-men's 
B'k  V.  Converse,  33  La.  An.  963  ; 
Horn  V.  R.  R.  Co.,  38  Wis.  463  ; 
Atchison,  etc.,  R.  R.  Co.  v.  Bhick- 
shire,  10  Kan.  477;  Legrand  v. 
Sidney  CoU.,  5  Mumf.  (Va.)  324; 
Hailes  v.  State,  9  Tex.  App.  170  ; 
Bish. ,  Wr.  L..  §  37,  and  cases 
infra. 

(a)  13  &  14  Vict.,  c.  21,  s.  7. 

''"  See  Div'n  of  Howard  Co.,  15 
Kan.  194  ;  Collier  v.  Baptist  Soc'y, 
8  B.  Mon.  (Ky.)  68  ;  Ilalbert  v. 
Skyles,  1  :\rarsli  (Ky.)  369;  Somer- 
ville  V.  Winl)ish,  7  Gratt.  (Vu.) 
205  ;  Hart  v.  R.  R.  Co.,  6  W.  Va. 
336.  In  Somerville  v.  Winbisb, 
supra,  it  was  decided  that  the  ^-tat- 
iite  requiring  the  appellate  court 
to  take  judicial  notice  of  private  or 
local  acts  applied  in  cases  decided 
below  before  as  well  as  after  the 
enactment. 


'^•2  State  V.  Chambers,  93  N.  C. 
600;  Bish.,  Wr.  L.,  §  42a;  and 
cases  infni. 

i«  People  V.  Wright,  70  111. 
388. 

1^  See  Montague  v.  State,  54 
3Id.  481. 

^■*^  State  V.  Chambers,  supra ; 
and  see  Bish.,  Wr.  L.,  ubi  supra. 

'•**'  People  V.  Wright,  supra. 

i«  Ibid. 

'•**  In  this  sense,  the  phrases 
"public"  and  "general,"  as 
applied  to  statutes,  (e.  g.  in  a  pro- 
vision that  no  general  law  shall  be 
in  force  until  published.)  are 
synonymous  :  Clark  v.  Janesville, 
10  Wis.  136.  But  they  are  not  so  as 
contra-distinguished  from  "local" 
or  "  special."  A  law  may  beobnox- 
ious  to  a  constiluliou;'.l  i)ro]iiliiti()n 
against  special  or  local  legislation, 
•/.  e.,  as  not  being  "  general"  legis- 
lation, which,  if  valid,  would  be 
entitled  to  judicial  notice  as  a  pub- 
lic law.  See,  upon  this  subject,, 
post,  §  507,  note,  and  §  521,  note. 


§502] 


PUBLIC  AND  TRIVATE   ACTS. 


705 


in  the  limits,  as  to  time  and  territory,  of   its  operation,  it 
applies  to  and  affects  all  persons,  i.e.,  the  public,  and  not 
merely  certain  persons  or  classes  of  persons  or  interests.'" 
Of  this  kind  of  public  statutes  are  those  which  prohibit  the 
sale   of  liquors,  generally,  or   on    certain    days,  in    certain 
counties  or  parts  of  the  state,""  or  within  a  designated  distance 
of  a  certain  locality  ;'"  establishing  a  metropolitan  sanitary 
district  and  punishing  violations  of  its  provisions  ;""  relating" 
to  the  common  schools  of  a  certain  section  of  the  state  ;'*^ 
providing  for  the  laying  out  and  sale  of  lands  belonging  to 
the   state  ;"'   and    pre-eminently,    statutes   concerning   the 
administration   of  public  justice,  in  which,  though  local  in 
their  application,  or  respecting  courts  of  limited  jurisdiction, 
all  persons  are  interested,  and  by  which  all  may  be  affected.'" 
Such  was  held  to  be  an  act  relating  to  justice's  courts  in  a 
certain  city  ;"'^  an  act  requiring  suits  against  a  designated 
municipality    to    be    brought  in  a  particular   court  exclu- 
sively ;'"  an  act  conferring  on  a  certain  county  court  jnrisdic- 
tion  equal  to  and  concurrent   with  the  circuit  court  for  all 
sums  not  exceeding  a  specified  amount  ;"*  an  act  changing 
the  time  for  the  holding  of  court  in  a  particular  county  ;"* 
and  an  act  providing  that  all  judicial  sales  in  a  certain  county, 
except  in  specified  cases,  should  be  made  by  the  sheriff,  and 
prescribing  his  fees  upon   sales  on  foreclosure.''"      An  act 


"'  Burnlmm  v.  Acton,  4  Abb. 
Pr.  N.  S.  (N.  Y.)  1  ;  35  How.  Pr. 
48;  Puvce  v.  Kimball,  9  Gr.  (Me.) 
54  ;  Levy  v.  State,  6  Ind.  281  ;  and 
cases  iufra. 

^^^  Il)id.;  Van  Swartow  v. 
Com'th,  24  Pa.  St.  131.  A  local 
option  law  was,  in  Exp.  Lynn,  19 
Tex.  App.  293,  said  to  be  "  in  one 
sense  "  a  general  law,  but,  as  its 
operation  was  necessarily  local  to 
the  counties,  etc.,  tliat  might  adopt 
it,  in  this  sense  a  special  hxw,  with 
the  eflect  of  setting  aside  and  dur- 
ing its  operation  repealing  all  laws 
and  regulations  in  conflict  with  it, 
so  that  an  unexpired  license  granted 


under  the  law  previously  in  force      Wis.  319, 


^^2  Burnham  v.  Acton,  4  Abb. 
Pr.  N.  S.  (N.  Y.)  1 ;  35  How.  Pr. 
48. 

'^^  Bevens  v.  Baxter,  23  Ark.. 
387 

'54  West  V.  Blake,  4  Blackf, 
(Ind.)  234. 

'55  People  V.  Davis,  Gl  Barb. 
(N.  Y.)  456,  and  cases  infra. 

'5s  Re  Walker,  1  Edw.  Sel.  Cas. 
(N.  Y.)  575. 

'"  Bretz  V.  New  York,  6  Robt. 
(N.  Y )  825  ;  Same  v.  Same,  4 
Abb.  Pr.  N.  S.  (N.  Y.)  258;  35 
How.  Pr.  130;  McLain  v.  New 
York,  3  Daly  (N.  Y.)  32. 

'58  Meslike  v.    Van    Doren,    16 


was  no  defence  to  a  prosecution 
for  violation  of  the  local  option 
law. 

'5'  State  V.  Chambers,  93  N.  C. 
600  :  in  this  case  2  miles. 

45 


159  pi-ice  V.  White,  27  Mo.   275. 

'^0  Keriigan  v.  Force,  16  N.  Y. 
Supr.  Ct.  l85.  But  see  State  v. 
Judges  of  C.  P.,  21  Ohio  St.  1,  as 
to  an  act  rcgulatmg  the  amount  of 


roG 


PUBLIC    AND    PRIVATE  ACTS. 


[§503 


Idealizing  elections  previously  liekl  in  a  count}' on  the  ques- 
tion of  issuiiii^  bonds  in  uid  of  certain  railroads,  and  author- 
izing townships  on  or  near  the  line  of  a  particular  railroad,  to 
i^ubscrihe  to  its  stock  and  issue  bonds  therefor,  was  held  a 
public  act,  inasmuch  as  it  "  affects  not  only  the  people  of  the 
•county  [referred  to]  and  of  many  of  the  townships  of  all  the 
counties  lying  on  or  near  the  line  of  the  railroad  designated, 
but  also  all  persons  to  whose  hands  the  bonds  issued  by  the 
county  and  township  mentioned  may  come.""'  Again,  laws 
relating  to  the  political  subdivisions  of  the  state  government 
arc  public  laws,  as  acts  defining  the  boundaries  of  counties  ;"' 
prescribing  the  limits  of  counties  and  towns  ;"^  incorporating 
cities"*  and  public  corporations  generally,"*  and  annexing 
one  part  of  a  town  to  another."*  So,  an  act  creating  a  reser- 
vation, with  the  fact  that  the  whole  of  a  certain  county  fell 
within  the  limits  of  the  same,  was  judicially  noticed."' 

§  503.  What  are  Private  Acts. — [On  the  other  hand,  statutes 
concerning  particular  persons  or  the  distinctive  interests 
of  individuals  or  classes,  peculiar  to  them  and  not  shared  by 


compensation  attticbed  to  local 
offices  in  a  certain  county.  In 
Den  V.  Ilehnes,  3  N.  J.  L.  *10r)() 
(2  Penn.  600)  an  act  taxing  bank 
stock,  enumerating  all  the  banks 
then  in  the  state,  and  giving  a 
power  of  sale  in  default  of  payment 
-was  hetd  to  be  clearly  a  public,  not 
a  i);ivate  act.  And  it  was  also 
said,  p.  *10G1  (610):  "It  is  true 
tliat  statutes  giving  a  new  power 
of  jurisdiction,  must,  in  general, 
be  strictly  pursued.  But  there  is  a 
still  liigher  rule, — that  all  acts 
made  \n-o  bono  publico,  arc  to 
have  a  liberal  consi ruction." 

•"'  Uiuty  V.  Barrage,  103  U.  S. 
447,  45"),  and  this  irrespectively  of 
the  i)rovision  declaring  tlie  act  a 
pul)lic  one.  See,  also.  Walnut  v. 
AVade,  1(1.  683.  Comp.  Sherman 
Co.  V.  Simons,  109  Id.  735,  holding 
an  act  authorizing  a  county  to 
i>sue  bonds  tor  the  [)aynient  of  an 
<'.\i>ting  debt  a  general  act.  But 
see  Luling  v.  Racine,  1  Biss.  314, 
as  to  an  act  authorizing  a  city  to 
issue  bonds. 

"5'^  Ross  v.  Rcddick.  5  111  73. 


!''•'  Steijhenson  v.  Doe,  8  Blackf. 
(lud.)  508;  and  see,  Com'th  v. 
Sprinu;tield,  7  Mass.  9. 

'"  Loper  v.  St.  Lovns,  1  i\Io.  681; 
a  city  charter  being  a  general,  in 
the  sense  of  a  public,  law  :  Clark 
V.  Jaiu'svilie,  supra,  note  148. 
That  the;  courts  of  a  state  will  take 
judicial  cognizance  of  the  charters 
and  charter  powers  of  municipali- 
ties establislied  within  the  same, 
see:  Fauntleroy  v.  Hannibal,  1  Dill, 
118;  Stier  v.  Oskaloosa,  41  Iowa. 
.353;  Case  v.  Mobile,  30  Ala.  538; 
Payne  v.  Tread  well,  16  Cal.  220; 
AVinooski  v.  Gokey,  49  Vt.  282; 
Terry  v.  3Iilwaukee,  15  Wis.  490; 
State  V.  Sherman,  42  ]\Io.  210; 
Prell  V.  McDonald,  7  Kan.  426; 
and  of  the  existence  of  cities 
whether  by  charter  or  by  prescrip- 
tion :  Denv.  Ilelmes,  supra. 

''^5  Porlsmonth  Livery  Co.  v. 
AV'at.son,  10  Ma.ss.  91. 

1C6  Xe;v  Portland  v.  New  Vine- 
yard, 16  Me.  69. 

161  Wright  V.  Hawkins,  28  Tex. 
452,— the  Miss.  &  Pac.  R.  II.  reser- 
vation. 


§  503] 


PUBLIC    AND    PBIVATE  ACTS. 


707 


the  public,'"  and  consequently  charters  of  private  corpora- 
tions,'°°  and  amendments  to  their  charters,  are  private 
acts,  not,  in  general,  judicially  noticed  by  the  courts."* 
But  this  rule  may  be,  and  in  some  of  the  states  of  the  Union 
is,  superseded  by  statutory  rules  requiring  the  judicial  notice 
of  acts  of  incorporation  in  general ;'"  and  it  is  inapplicable 
where  the  corporation  is  created  by  a  public  statute.'"  This 
cognizance,  however,  extends  only  to  corporations  of  the 
state  to  which  the  court  belongs,  not  to  foreign  corporations  ;'" 
and  where  a  statute  required  the  courts  of  the  count}'  in 
which  the  articles  of  association  of  a  corporation  were 
recorded  to  take  judicial  notice  of  its  corporate  existence^  it 
was  held  that  this  requirement  did  not  extend  to  the  appeJ- 
late  court."* 


'^8  Supra,  §  503,  and  cases  there 
cited. 

169  j^or  do  courts,  as  a  rule,  judi- 
ciall}^  notice  the  existence  ot  pri- 
vate corporations  under  a  general 
law,  or  the  existence,  nature  or 
extent  of  the  powers  granted  them 
by  special  charter  or  other  special 
enactment  :  see  cases  in  next  note. 
But  in  Den  v.  Helmes,  supra,  it 
was  stated,  at  p.  *1057  (606),  that 
courts  will  notice  the  recognition, 
contained  in  various  acts  of  the 
Legislature,  of  the  existence  of  a 
private  corporation,  in  that  case  a 
bank. 

'•0  See  U.  S.  B'k  v.  Stearns,  15 
Wend.  (N.  Y.)  314;  Portsmouth 
Liver}-  Co.  v.  Watson,  10  Mass.  91, 
■93;  Montgomerv  v.  Plank  Road 
Co..  31  Ala.  76;  Drake  v.  Flewellen, 
33  Id.  106;  Perry  v.  R.  R.  Co..  55 
Id.  413  ;  Perdicaris  v.  Bridge 
Co.,  39  N.  J.  L.  367;  Clarion 
B'k  V.  Cruber,  87  Pa.  St.  468  ; 
Timlow  V.  R.  R.  Co..  99  Id.  384; 
Mandere  v.  Bnnsiguore,  38  La. 
An.  415;  Butler  v.  Robinson,  75 
Mo.  193;  Carrow  v.  Bridge  Co., 
Phill.  L.  (N.  C.)  118.  Nor  will 
the  court  notice  under  which  of 
several  general  statutes  any  par- 
ticular private  corporation  was 
organized,  or  whether  it  has 
adopted  the  provisions  of  some 
other  general  act:  Danville,  etc., 
Co.  V.  State,  16  Ind.  456. 

"^  See  Durham  v.  Daniels,  3 
Greene,    (la.)   518 ;    State   v.    Mc- 


Allister, 34  Me.  139;  Bait.,  etc.. 
R.  R.  Co.  V.  Sherman,  30  Gratt. 
(Va.)  603. 

1^^  Covingt.  Drawbr.  Co.  v. 
Shepherd,  30  How.  337.  And  see 
Young  V.  Bank,  4  Cranch,  384, 
where  the  act  incorporating  tlie 
Alexandria  bank,  being  printed 
and  bound  up  with  public  acts, 
in  a  volume  purporting  to  give 
public  acts,  was  held  to  be  such 
and  entitled  to  judicial  notice. 
So,  in  Hall  v.  Brown.  58  N.  H. 
93,  it  was  held  the  court  might 
notice  a  railway  charter  published 
by  the  state  among  the  public  and 
private  acts  and  resolutions  of  the 
Legislature  as  required  by  statute, 
and  distributed  in  conformity  with 
it  to  the  state,  including  each 
justice  and  clerk  of  the  court  "  for 
"the  use  of  the  court."  See,  also 
as  to  statutes  establishing,  and 
regulating  the  business  of  Banks: 
Brouson  v.  Wiman,  10  Barb. 
(N.  Y.)406;  Buell  v.  AVarner.  33 
Vt.  570  ;  Davis  v.  Bank,  61  Ga. 
69  ;  Newberry  B'k  v.  li.  R.  Co.,  9 
Rich.  (S.  C.)  495;  Shaw  v.  State,  3 
Sueed  (Teuu.)  86;  and  see  Doug- 
lass V.  Blanch  B'k,  19  Ala.  659; 
Terry  v.  Bank,  66  Ga.  177;  Feem- 
ster  V.  Ringo,  5  T.  B.  Mon.  (Ky.) 
336. 

'■*  Lewis  V.  B'k  of  Kentuckv, 
40  Am.  Dec.  469.  But  see,  Sta'te 
V.  JMcCullough,  3  Nev.  303. 

"^  Cicero,  etc.,  Drain.  Co.  v, 
Craighead,  38  Ind.  374. 


70S  PUBLIC    AND    PRIVATE    ACTS.  [§§  504-,  505 

§  504:,  Piivate  Acts  Requiring  Judicial  Notice. — [Even  ill  the 
ubseiice  of  sucli  a  general  statutory  direction,  however,  a 
private  act  may  become  entitled  to  judicial  notice  by  a  legis- 
lative declaration  announcing  it  to  be,  or  requiring  it  to  be, 
taken  as  a  public  law  ;"^  and  where  an  act  is  so  characterized 
by  the  Legislature,  a  supplement  or  amendment  of  it  neces- 
sarily becomes  a  public  law  also,  without  any  special  declara- 
tion to  that  effect."'  Again,  an  act  will  become  entitled  to 
judicial  notice,  which  otherwise  would  not  be  so,  where  it  is 
expressly  recognized'"  :ind  amended"*  by  a  public  one;  or 
where  the  act  itself,  e.  (/.,  an  act  incorporating  a  bank,  con- 
tains provisions  for  the  forfeiture  of  ^Denalties  to  the  state, 
or  the  punishment  of  public  offences  in  relation  to  it,""  as, 
where  it  makes  the  larceny  of  the  notes  of  a  bank  incorpor- 
ated by  it  felony, '"'  Nor  is  an  act  amending  and  extend- 
ing the  provisions  of  a  general  law  over  counties,  not  before 
subject  to  it,  a  private  law.'*'  Moreover,  a  statute,  local  or 
private  in  many  of  its  provisions,  may  contain  a  section 
wiiich  is  of  a  public  or  general  character,  and  to  be  noticed 
as  sucli  ;'*'*  and  this,  although  its  title  indicates  that  it  is  a 
local  act."' 

§  505.  Coustructioii  of  Private  as  Compared  with  Public  Acts> 
— •[The  rule  as  to  the  construction  of  private  acts,  as  compared 
witii  that  of  public  acts,  has  been  laid  down,  in  a  recent  case, 
as  follows:  "In  the  case  of  a  public  act,  you  construe  it 
keeping  in  view  the  fact  that  it  must  be  taken  to  have  been 
passed  for  the  public  advantage,  and  you  apply  certain  fixed 
canons  to  its  construction.  In  the  case  of  a  private  act, 
which  is  obtained  by  persons  for  their  own  benefit,  you  con- 
strue  more   strictly   provisions   which    they  allege  to   be  in 

i'5   See  Butler  v.   Robinson,  75         '»"  U.  S.  v.    Porte,   1  Crauch  C. 

Mo.  192.  Ct.  369. 

''«  Unity  V.  Barrage,  103  U.   S.  '«'   Third    Nat.    B'k    v.    Seneca 

447  ;  State  v.  Bergen,  34  N.  J.  L.  Falls,  15  Fed.  Rep.  783. 
43S  ;  Stephens  Co.  v.  R.  R.  Co.,  33  '»'^  Bretz  v.  New  York,  4  Abb. 

Id.  229.  Pr.  N.   S.   (N.  Y.)  258  ;  35  How. 

1-''  Rogers'  Case,  2  Greenl.  (Me.)  Pr.  130  ;  McLain  v.  New  York,  3 

301  ;   Gordon  v.    Montgomery,   19  Daly    (N.   Y.)   32  ;     Alienlown    v. 

Iiul.  110.  Hower.  93  Pa.  St.  332,  33(5. 

'"  Lavalle  v.  People,  6  111.  App.  '*"  McLain  v.  New  York,  supra : 

IT)?.  of  course,  in  the  absence  of  con- 

"*  Rogers'  Case,  supra.  flictiug  constitutional  provisions. 


§  505]  PUBLIC!    AND    PKIVATK    ACTS.  709 

their  favor,  because  tlie  persons  who  obtain  a  private  act 
ought  to  take  care  that  it  is  so  worded  that  that  which  they 
desire  to  obtain  for  themselves  is  phiitily  stated  in  it.  But, 
when  the  construction  is  perfectly  clear,  there  is  no  difference 
between  the  modes  of  construing  a  private  act  and  a  public 
act.""*  The  statute  being  plain  and  unambiguous,  wiiether 
expressed  in  general  or  limited  terms,  there  is  no  room  for 
construction  and  no  permissible  resort  to  extrinsic  facts  to 
arrive  at  any  other  meaning,  in  the  case  of  a  private  statute, 
any  more  than  in  that  of  a  public  one  ;"'^  "  and,  however 
ditiicult  the  construction  of  a  private  act  may  be,  when  once 
the  court  has  arrived  at  the  true  construction,  after  having 
subjected  it  to  the  strictest  criticism,  the  consequences  are  pre- 
cisely the  same  as  in  the  case  of  a  public  act.  The  moment 
you  have  arrived  at  the  meaning  of  the  Legislature,  the  effect 
is  the  same  in  the  one  case  as  in  the  other.""^  Even  where  a 
statute  involves  the  elements  of  a  compact  between  the 
state  and  an  individual,  its  construction  must  nevertheless 
proceed  upon  the  principles  regulating  the  construction  of 
statutes,  and  not  upon  those  applicable  exclusively  to  the 
construction  of  contracts, — the  contractual  features  of  such 
an  eiuictment  being  something  apart  by  themselves  and  to 
be  differently  construed.'" 

18*  Altrincbiim  Union  V.  Cheshire  10  Ct.  of  CI.  559,   aflf'd  :   91  U.  S. 

Lines  Committee,  L.  K.  15  Q.  B.  73,  holding,  p.  91,  that  the  conse- 

D.  597,   603,  per  Lord  Esher,  M.  quences  to  tlie  appeilimt  were  not 

R.      And  see  to  same  effect  as  the  to  be  considered, 

last  chaise  :   Bartiett  v.  Morris,  9  ''•^Altrincham  Union  v.  Cheshire 

Port.  (Ala.)  266.  Lines  Committee,  ubi  supra. 

'**^  Bartiett  V.  Morris,  supra;  and  '''^  Union  Pac.   R.   H.  Co.  v.  U. 

•see  Union  Pac.  R.  R.  Co.  v.  U.  S.,  S.,    supra.      Comp.     Binghamtou 

Bridge  Case,  3  Wall.  51,  74-75. 


110  CONSTITUTIONS.  [§  50& 


CHAPTER  XYIII. 

Analogies  and  Differences  between  the  Constkuction  of 
Statutes  and  that  of  Constitutions. 

§  506.  General  Analogies  and  Differences  between  Statutes  and  Consti- 
tutions. 

§  507.  Literal  Construction.     Technical  and  Popular  Meaning. 

§  509.  External  Circumstances.     History.     Debates. 

§  511.   Preamble. 

§  513.  Titles  or  Captions  of  Articles,  etc. 

§  513.  Schedule. 

§  514.  Context.     Bill  of  Ptights. 

t^  517.  Superseded  and  Succeeding  Constitutional  Provisions. 

§  518,  Expansion  and  Restriction  by  Reference  to  Subject  Matter  and 
Object. 

§  520.  Presumption  against  Unnecessary  Change  of  Law. 

§  521.  Presumption  against  Evasion. 

§  522.  Presumption  against  Ousting  Jurisdiction. 

§  523.  Presumption  against  Interference  with  Federal  Constitution. 

§  524.  Presumption  against  Injustice,  Absurdity,  etc. 

§  525.  Presumption  against  Retrospective  Operation. 

^  526.  Strict  Construction. 

§  527.  Usage,  Contemporaneous  and  Legislative  Construction. 

i  529.   Stare  Decisis. 

§  530.  Effect  of  Adoption  of  Adjudicated  Provisions  of  Former  or  Other 
Constitutions. 

§  531.   Change  of  Language. 

§  532.  Associated  Words  and  Clauses. 

§  533.  Expressio  Unius,  etc. 

§  534.  Computation  of  Time. 

§  535.  Implications  and  Intendments. 

^  536.  Imperative  and  Directory  Provisions. 

§  537.  Waiver  of  Constitutional  Provisions.     Estoppel. 

§  538.  Enactments  and  Contracts  in  Violation  of  Constitutional  Provis- 
ions. 

§539.  Commencement.     Self-executing  Provisions. 

^  506.  General  Analogies  and  Dififerences  between  Statutes  and 
Constitutions. — [The  preeedini>^  parts  of  this  work  have  dealt 
exclusively  with  the  coMstriiction  of  statutes.  It  has  not 
been,  and  is  not,  an}'  part  of  its  design  to  enter  upon  questions- 


§  506]  CONSTITUTIONS.  711 

of  constitutional  law.  Yet  rules  for  the  interpretation  of  con- 
stitutional provisions  are  so  often,  in  judicial  decisions,  bor- 
rowed from  cases  of  statutory  construction,  and  conversely, 
that  a  brief  indication  of  the' analogies  and  differences  recog- 
nized as  existing  between  the  principles  applicable  to  the 
one  and  those  applicable  to  the  other  seems  indispensable, 
not  only  to  complete  the  view  taken  of  the  interpretation  of 
written  laws,  but  to  point  out  the  limits  within  which  the 
decisions  upon  the  one  class  of  cases  may,  and  beyond  which 
they  may  not,  be  invoked  as  authority  upon  cpiestions  arising 
in  the  other  class.  In  the  attempt  to  do  this,  the  general 
arrangement  of  the  subject  in  the  foregoing  chapters  will  be 
followed  in  the  sections  of  this  chapter. 

[In  a  general  sense,  it  is  undoubtedly  true  that  a  constitu- 
tion is  a  law,  differing  from  a  statute  in  its  paramount  force 
in  cases  of  conflict;'  and  consequently  many  of  the  rules 
applicable  in  the  construction  of  statutes  are  necessarily 
equally  so  in  the  construction  of  constitutional  provisions.* 
But  the  constitution  differs  from  the  statutes  of  a  state  not 
only  in  being  supreme  over  all  of  them.  "  Such  instruments 
deal  with  larger  topics  and  are  couched  in  broader  phrase 
than  legislative  acts  or  private  muniments.  They  do  not 
undertake  to  define  with  minute  precision  in  the  manner  of 
the  latter,  and  hence  their  just  interpretation  is  not  always 
reached  by  the  application  of  similar  methods."*  A  constitu- 
tion, which  provides  for  the  future  as  well  as  for  the  pre- 
sent,* "  is  to  be  interpreted  so  as  to  carry  out  the  gi-eat  prin- 
ciples of  government,'"  and  in  the  accomplishment  of  this 
end,  the  application  of  arbitrary  rules  of  construction, 
justifiable  and  necessary  in  the  interpretation  of  statutes, 
which  serve  a  more  detailed  and  ephemeral  purpose,  is  to  be 
resorted  to  "  with  hesitation,  and  only  with  much  circum- 
spection.'" 

1  Daily  v.  Swope,  47  Miss.  367  ;  607,   620  ;  Hcnsliaw  v.  Foster,    9 

Bish.,  Wr.  L.,  §§  11a,   13,  16,  89,  Pick.  (Mass.)  313,  316. 

and  cases  cited;  and  post,  note  13.  ^  ConVtli  v.  Clark,  7  Watts  &  S. 

^Bisli.,  AVr.  L.,  §  93.  and  cases  (Pa.)  137,  133  ;  Monison   v.   Bach- 
there  cited  ;  Potter's  Dwarris,  654;  ert,  113  Pa.  St.  332.  329. 
Sedgw.,  19.  fi  Cooley,  Const.  Lim.,  101.   And 

^  Houseman  v.  Com'th,  100  Pa.  see  Id.  73,    75  ;   Story,    Const.,    ti 

St.  233,  333,  per  Green,  J.  454. 

*  Leonard  v.  Com'lh,  113  Pa.  St. 


712 


CONSTITDTIONS. 


[§507 


§  507.  Literal  Construction.  Technical  and  Populai  Meaning. — 
[Like  other  instriiuieiits,  ii  constitution  iri  entitled  to  a  con- 
struction, as  nearly  as  in;ij  be,  in  accordance  with  the  intent 
of  its  makers,^  who.  in  this  case,  are  the  people  themselves.* 
Whilst,  therefore,  phrases  that  have  acquired  a  settled 
meaning,  thoroughly  understood,  not  only  in  legal  parlance, 
but  in  common  acceptation,  are  to  be  given  that  significance 
when  used  in  a  constitution,' — such,  e.  g.,  as  "  due  process  of 


'  Moers  v.  Reading,  31  Pa.  St. 
188,  200 ;  Hills  v.  Chicago.  00  111. 
80;  Hawkins  v.  Cairoll  Co.,  50 
Miss.  735.  See  Elton  v.  Geissert, 
10  Phila.  (Pa.)  331),  infra,  note  04. 
as  to  language,  which,  upon  the 
ground  of  intention,  was  construed 
as  abolishing  an  office  ;  and  Car- 
penter V.  People,  8  Col.  110, 
where,  to  avoid  the  exclusion  from 
a  provision  of  a  wliole  class 
expressly  mentioned,  the  word 
"  such  "  was  rejected. 

*  See  Hills  v.  Ciiicago,  supra  ; 
Beardstown  v.  Virginia,  70  111.  34; 
Manly  v.  State,  7  Md.  135;  Cooley, 
■Const.  Lim.,  08. 

*  Comp.  Daily  v.  Swope,  47 
Miss.  307,  where  it  is  said  to  be  a 
safe  rule  to  give  to  terms  used  in 
the  constitution  such  meaning  and 
application  as  they  have  received 
from  legislative  and  judicial  inter- 
pretation, except  in  cases  where  it 
is  apparent  that  a  more  general  or 
restricted  sense  was  intended. 
Thus,  in  Williamson  v.  Lane,  52 
Tex.  335,  it  was  held  that  a  con- 
tested election  proceeding  was  not 
a  "  civil  case  "  within  the  meaning 
of  art.  5,  §6,  of  the  Constitution 
limiting  the  appellate  jurisdiction 
of  the  Supreme  Court  to  such 
cases ;  (see  ante,  §  74 ;)  nor,  of 
course,  a  "suit,  complaint  or  plea," 
within  art.  5,  §  8,  where,  with 
those  words,  is  cou])led  the  clause, 
"when  the  matter  in  controversy 
shall  be  valued  at  the  amount  of 
$500,"  etc.  Nor  does  the  prohibi- 
tion of  art.  2,  §  12,  of  the  Illinois 
constitution,  against  imprisonment 
for  "  debt,"  extend  to  actions  for 
torts,  nor  to  fines  or  penalties  under 
penal  laws,  but  only  to  actions 
upon  contracts,  express  or  implied: 
Kennedy  v  People  (111.).  11  West 
Jiep.  48.     (Comp.   ante,  §  70).      In 


construing  prohibitions  against,  or 
limitations  upon,  "local  "  or  "spe- 
cial" legislation,  it  has  been 
said  that  "  a  law  is  said  to  be  local 
and  special  ...  not  because  of 
the  .  .  .  Constitution,  or  of  any 
decision  under  it,  but  because  il 
falls  within  the  pi'oper  definition  of 
a  local  law  both  before  and  since  " 
the  ado])tion  of  the  const itiUion  ; 
Evans  v.  Phillippi  (Pa.),  9  Cenlr. 
Pep.  Gtll,  01)3  ;  and,  conseqiuntly. 
in  that  case,  as  well  as  in  ijittinir 
V.  Com'th  (Pa.)  Id.  093.  it  was  liclil 
that  a  statute,  general  in  form,  was 
not  to  be  treated  as  a  local  or 
special  one,  because  its  application 
to  some  portions  of  the  slate  was 
prevented  b}^  the  existence  of 
local  laws,  enacted  bel'ore  the 
adoption  of  the  constitution,  unre- 
pealed by  the  statute,  or  expressly 
saved  by  it.  [Comp.  State  v.  Cam- 
den (N.  J.),  Id.  497,  where  a  gen- 
eral law,  in  terms  applying  to  all 
cities,  was  held  to  repeal  a  special 
provision  formerly  in  force  as  to 
one:  see  Burke  v.  jefi"ries,  20  Iowa, 
145  ;  People  v.  West  Chester,  40 
Hun  (N.  Y.)  353,  ante,  §  228  ; 
because,  otherwise,  the  act  would 
violate  the  constitutional  prohibi- 
tion of  special  legislation, — a  design 
not  to  be  imputed  to  the  Legisla- 
ture: ante,  ii  178  ;  State  v.  Intox. 
Liquors,  (Me.)  5  New  Engl.  Kep. 
852;  Slump  v.  Hornback,  (.Mo.)  0 
S.  West.  Rep.  350.]  And  in  Mon- 
tague v.  State,  54  Mil.  481,  an  act 
adding  husbands  to  the  class  of 
persons  exempt  from  the  operation 
of  the  collateral  inheritance  tax 
law,  and  making  the  exemption 
api)lic;ible  to  all  such  claims  not. 
actually  paid,  was  held  to  hv.  a 
public  and  general  law,  and  the 
fact  that  the  consideration  of  a 
particular  individual's  case  proba- 


507] 


CONSTITDTIONS. 


718 


law,"  or  tlie  "law  of  the  land,"  i.  e.,  the  general  law,  the 
law  that  hears  before  it  condemns,  thiit  proceeds  upon  inquiry, 
and  renders  judgment  only  after  trial,'"  or  "  ex  post  facto 
laws,""  or  the  word  "  law,"  which  cannot  properly  include 
a  local  regulation,  such  as  a  city  ordinance,"  or  orders    or 


lily  induced  the  euuctmcnt  of  the 
law  by  the  Lcgisluture  was  not 
permitted  to  cliauge  tiio  character 
of  tlie  act.  (See  ante,  §  31.) 
Again,  an  act  amending  the  charter 
of  a  city  was  held  noi  to  be  a  local 
or  private  law  within  tlie  meaning 
of  Wis.  Const.,  art.  4.  §18: 
Thompson  v.  Milwaukee,  (Wis.) 
34  N.  West.  Rep.  402.  (See  ante, 
§502.)  So,  as  to  the  111.  Const., 
an  act  providing  for  the  assessment 
and  collection  of  taxes  in  all  incor- 
porated cities  and  towns  of  the 
state  :  People  v.  Wallace,  70  111. 
689  ;  and  see,  as  to  New  York, 
with  reference  to  a  similar  statute  : 
Ensign  v.  Barse,  (N.  Y.)  14  N. 
East.  Rep.  400, — and  as  to  acts 
relating  to  the  laying  out,  etc.,  of 
streets  in  cities:  Be  Lexington  Ave., 
92  N.  Y.  C29  ;  Re  Woolsey,  95  Id. 
135.  It  was,  indeed,  held  in  New 
York,  that  the  exception  from  its 
operation  of  two  out  of  sixty  coun- 
ties in  the  state,  did  not  render  it 
local  :  People  v.  Plank  Road  Co., 
83  N.  Y.  1.  Compare,  however. 
State  V.  Hudson  Co.,  (N.  J.)  9 
Centr.  Rep.  501,  where  it  was  held 
that  the  exception  of  one  county 
rendered  the  act  unconstitutionar; 
and  see,  to  same  eifect,  Davis  v. 
Clark,  15  W.  N.  C.  (Pa.)  209; 
Scran  ton  Sch.  Distr.  App.,  113 
Pa.  St.  17G,  190. 

'"  Sec  Dartmouth  College  v. 
Woodward,  4  Wheat.  519  ; 
Pennoyer  v.  Neff,  95  U.  S.  714; 
McMillcn  V.  Anderson,  Id.  37  ; 
Pearson  v.  Yewdall,  Id.  294  ;  Dav- 
idson V.  New  Orleans.  96  Id.  97; 
Taylor  v.  Porter,  4  Hill  (N.  Y.) 
140  ;  Stuart  v.  Palmer.  74  N,  Y. 
183  ;  Zeigler  v.  R.  R.  Co.,  58  Ala. 
594;  Craig  v.  Kline,  65  Pa.  St. 
399,  413  ;  >alairet's  App.,  67  Id. 
479,  485  ;  Philadelpbia  v.  Scott,  81 
Id.  80  ;  Exp.  Steinman,  95  Id.  220; 
State  V.  Dohertv,  00  ]\Ie.  504; 
State  V.  Allen,  2  McCcrd  (S.  C.)  55 
(but  see  Fox's  App.,  112  Pa.  St. 
337)  ;  Soulli  Platte  Land  Co.  v. 
BulTalo,    7  Neb.   253;    Wright    v. 


Cradlebaugh,  3  Nev.  341  ;  St. 
Louis,  etc.  Ry.  Co.  v.  Williams, 
(Ark.)5S.  West.  Rep.  883;  Cooley, 
Tax'n,  262  ;  Cooley,  Const.  Lim., 
432-439.  A  proceeding  in  equity 
is  "  du(i  process  of  law  :"  McLane 
v.  Leicht,  09  Iowa,  401. 

1'  Cooley,  Const.  Lim.,  72,  73. 
See,  as  to  the  meaning  of  the 
phrase,  ante,  §  279.  See  State  v. 
Dolan.  (Mo.)  0  S.  West.  Rep,  366, 
that  an  act  requiring  courts  to  take 
judicial  notice  of  the  population  of 
cities  according  to  the  last  enume- 
ration, is  not  an  ex  post  facto  law. 
The  prohibition  against  such  legis- 
lation ajiplies  only  to  legislation 
concerning  crimes  ;  Exp.  Sawyer, 
124  U.  S.  31  L.  ed.  402. 

'-  Baldwin  v.  Philadelphia,  99 
Pa.  St.  164  :  within  the  meaning 
of  a  provision  that  no  "  law  "  shaU 
extend  the  term  of  a  public  officer, 
or  increase  or  diminish  his  salary, 
etc.  (Comp.  post,  note  33.)  See 
Wayne  Co.  v.  Detroit,  17  Mich. 
390";  Fennell  v.  Bay  City,  36 
Id.  186,— post,  §  508  :"  and  comp. 
Exp.  Schmidt,  24  S.  C.  363,  where 
it  was  held  that  an  offence  against 
a  city  ordinance  is  not  the  same 
as  an  offence  under  a  statute, 
nor  to  be  prosecuted  by  indictment 
nor  tried  liy  jury.  A  state  consti- 
tution, however,  is  a  "  law  "  with- 
in the  meaning  of  art.  i.,  sec.  x., 
cl.  1,  of  the  federal  constitution 
forbidding  laws  impairing  the  obli- 
gation of  contracts:  R.  R.  Co.  v. 
McClure,  10  Wall.  511;  and  see 
Beekman  v.  Skaggs,  59  Cal.  541. 
post,  §  523.  As  to  the  meaning  of 
"same  offence,"  Filth  Amendment 
U.  S.  Const.,  as  requiring  the 
ollence  to  be  the  same  both  in 
law  and  in  fact,  see  ante,  §  388, 
U.  S.  V.  Cashiel,  1  Hugh.'  552. 
In  other  cases,  "saine"  may 
mean  not  the  specilic,  identical 
thing,  but  of  a  kind  or  species  : 
Craps  V.  Brown,  40  Iowa,  487, 
493, — as  where  a  contiact  pro- 
vided for  drawing  out  of  a  ven- 
ture    "the    same   property"    the 


714  ( ONSTITUTIOXS.  [§  507 

agrcemonts  of  county  coininlssioners," — where  a  phrase  lias 
botli  a  technical  and  a  popular  meaning,  the  former,  which 
would  ordinarily  prevail  in  a  statute,  will  be  discarded  for 
the  latter  in  a  constitutional  provision."  Indeed,  the  lan- 
guage of  the  constitution,  owing  its  whole  force  to  its  rati- 
licatiou  by  the  people,  is  always  to  be  taken  in  its  common 
acceptation,  its  plain,  ordinary,  natural,  untechnical  sense;"  v 
unless  the  very  nature  of  the  subject  indicates,  or  the  context 
euiTirests,  that  it  was  used  in  its  technical  sense.'"  It  must 
also  be  presumed  that  the  people  who  adopted  the  constitu- 
tion nndcrstood  the  force  and  extent  of  the  language  used,'' 
and  that  the  language  has  been  employed  with  sufficient 
precision  to  convey  tlie  intent."  It  follows,  that,  where  the 
words  of  a  constitutional  provision,  taken  in  their  ordinary 
sense  and  in  the  order  of  their  grammatical  arrangement," 
embody  a  definite  meaning,  which  involves  no  absurdity  or 
conflict  with  other  parts  of  the  same  instrument,  the  mean- 
ing thus  apparent  on  the  face  of  the  provision  is  the  only 
one  that  can  be  ])resumed  to  have  been  intended,  and  there 
is  no  room  for  construction.""  It  is  not  allowable  in  a  con- 
stitution, any  more  than  in  a  statute,  to  interpret  that  which 
has  no  need  of  interpretation."'  Nor,  as  will  be  .seen  here- 
after, can  the  inconvenience  or  hardship  that  may  ensue  the 

niutics  put  in  :   Brockway  v.  Row-  Id.  338  ;  Weill  v.  Kenfiold,  54  Cal. 

Icy   G6  111.  99.      But  see  Chahooii  111  ;  Mauly  v.  State,  7  Md.   135; 

V.  State,  21  Gratt.  (Va.)  822,  where  State  v.  Mace,  5  Id.  337  ;  Greeu- 

"  similar"    jurisdiction   was    coa-  castle  Tp.   v.  Black.   5  lud.   557; 

.stnied  to  mean    "same"   jurisdic-  Carpenter  v.  People,   8  Col.  IIG  ; 

t^io,,  Sedgw.,  553  ;  Cooley,  Const.  Lira., 

"Crawford  Co.  v.  Nash.  99  Pa.  71  ;  Bish.,  Wr.  L.,  ^  92. 

St   253,  as  to  officers  appointed  by  '*  Weill  v.  Kenlield,  supra. 

[Ui^m  "   Ilenshaw  v.   Foster,    9  Pick. 

'»   State  V.    Mace,    5  Md.    337  ;  (Mass.)  312,  316. 

Manly  v.  State,  7  Id.  135;  Weill  v.  '^  Hills   v.   Chicago,  CO  III.   86; 

kenlield,  54  Cal.  111.     As  between  Cooley,     Const.     Lim.,     68,     and 

a   meaning    acquired    under     the  cases  in  note  2. 

jurisprudence  of  our  country  and  '^  As  to  the  inadmissibility  of  a 

that  of  another,  f?.  r/.,  England,  the  transpositicni   of    clauses     in    the 

former,  in  case  of  difference,  is  to  interpretation  of  a  section  ol  the 

l)e  preferred  :  The  Huntress,  Dav.  constitution,   see  Ogdcn  v.    Saun- 

g3  '  ders,  12  Wheat.  213,  267,  268. 

'!•  Gibbons  v.  Ogdeu,  9  Wheat.  ""  Nt^well  v.  People,   7  N.  Y.  9, 

1,   188;   Hills  v.   Chicago,   60  111.  97;    Hills  v.   Chicago.  60  111.   86; 

86 ;  Beardstown  V.  Virginia,  76  Id.  Springlield    v.    Edwards,    84    Id. 

34  •  Springfield  v.  Edwards,  84  Id.  626  ;  Cooley,  Const   Lim.,  68,  71. 

626;   Corn'th  v.  Clark,  7  Watts  &  '^i   Beardstown   v.    Virginia,    76- 

S.  (Pa.)  127  ;    Cronise   v.   Cronise.  111.  34. 
04  Pa.  St.  255  ;  Page  v.  Allen,  58 


§  508]  CONSTITUTIONS.  715- 

enforcement  of  a  provision  couched  in  such  unmistakable 
language,  justify  its  modification  by  construction  ;"  and  no 
considerations  of  sujjposed  policy  can  be  regarded  in  arriving 
at  the  meaning :  "  the  whole  line  of  this  argument  is  disposed 
of  by  the  phrase  '  Ita  lex  scripta  est.""'  ''No  accepted 
canon  of  construction,"  says  the  Supreme  Court  of  Michigan, 
"can  justify  us  in  adding  to  the  constitution  qualifying  words 
of  our  own,  suggested  only  by  outside  considerations,  which 
mayor  may  not  have  been  of  weight  with  the  convention  in 
framing,  or  the  people  in  adopting  that  inst;-uinent."'^* 

§  508.  [A  few  instances  of  the  application  of  this  principle 
of  constitutional  construction  may  not  be  out  of  phjce  here, 
and  may  serve  to  illustrate  its  bearing  and  effect.  A  provision 
of  the  California  constitution,"  requiring  every  bill,  before 
becoming  a  law,  to  be  "  read  three  times,"  unless,  in  case  of 
urgency,  that  requisition  be  dispensed  with  by  a  two-thirds 
vote  of  the  house,  is  construed  as  requiring,  according  to  its 
plain  import,  that  every  bill,  before  becoming  a  law,  shall 
be  read  at  length,  not  only  by  its  title,  on  three  separate 
days  in  each  house,  unless,  in  the  case  of  urgency,  two-thirds 
of  the  house  where  the  bill  is  pending  shall,  by  a  vote  of 
yeas  and  nays,  dispense  with  the  provision,  either  as  to  the 
manner  of  reading,  or  as  to  the  reading  on  separate  days."* 
A  provision  of  the  Michigan  constitution,"'  that  "  all  fines 
assessed  and  collected  in  the  several  counties  and  townships 
for  any  breach  of  the  penal  laws  shall  be  exclusively  applied 
to  the  support  of  such  libraries  "  as  the  Legislature  is  required. 


*■-  See  post,  §  524.  a  prohibitiou  against  the  appoint- 
^3  Weill  V.  Kenfield,  54  Cal.  Ill,  ment  of  a  senator  or  representative, 
117  ;  Hills  V.  Chicago,  supra.  to  any  civil  otlice.  during  the  time 
-■'    AVayne    Co.    v.    Detroit,     17  for  which  he  was  elected,  forbid 
3Iich.    8y0,     401.     In     People    v.  his  election  to  such  an  ofBce  •.  Car- 
Squire,  (N.  Y.)  10  Centr.  Rep.  437,  penter  v.  People.  8  Col.  116. 
it  was  held  that  art.  o,  §  17.  N.  Y.  "  Art.  iv,  §  15. 
Const.,    providing  that    "  No  Act  -'' "Weill  v.  Kenlield,  supra.    See, 
shall  be  iiassed  which  shall  provide  on    this    subject,    Cooley>   Const, 
that  any  existing  law,  or  any  part  Lim.,     168,    and     coni])are     post, 
thereof,  shall  be  made  or  deemed  a  §  530.     But  such  a  provision  does 
part   of  said   act,    or   which   shall  not  apply  to  ameudnienis  made  to^ 
enact  that  any  existing  law.  or  any  a  bill:  People  v.   Wallace,  70  111. 
part   thereof,    shall  be  applicable,  080.     Comp.  ante,  §  191,  and  post,., 
except  by  inserting  it  in  such  act,"  ^  524. 
did  not  apply  to  an  act  purporting  -'  Art.  xiii,  §  12. 
to  amend  existing  laws.     Nor  does 


716  CONSTITUTIONS.  [§  508 

by  a  preceding  clause  in  the  same  section,  to  establish  in 
each  township,  was  held  to  apply  to  such  penal  laws  of  the 
state  as  imposed  punishment  by  fine  and  imprisonment," 
and  not  to  the  numerous  forfeitures  and  penalties  growing 
out  of  the  breaches  of  duty  that  partake  of  the  nature  of 
civil  grievance  or  merely  local  wrong,  and  which  do  not 
come  within  the  category  of  criminal  conduct.*"  The  word 
"  session,"  in  a  provision  of  the  New  York  constitution, 
authorizing  the  governor,  when  the  senate  was  not  in  session, 
to  fill  vacancies  in  certain  offices,  was  held  to  mean,  not  a 
session  in  its  technical  sense,  but  a  present  acting  or  being 
of  the  senate  as  a  body  ;  so  that  the  senate  was  to  be  deemed 
not  in  session,  within  the  meaning  of  the  phrase,  and  the 
power  referred  to  as  existing  in  the  governor,  when  the  sit- 
tings were  terminated  or  interrupted  by  a  long  adjournment, 
althongh,  there  having  been  no  final  adjournment,  the  ses- 
sion, strictly  speaking,  continued.'"  Again,  it  has  been  held 
that  the  term  "municipal  corporations"  was  not  to  be  taken 
to  mean  quasi-municipal  corporations,  to  the  exclusion  of 
municipal  corporations  generally  so  known."  A  provision 
declaring  disqualilied  from  holding  office  and  from  exercis- 
ing, for  four  years,  the  right  of  suffrage,  any  person,  who, 
while  a  candidate  for  office,  should  violate  "any  election 
law  "  of  the  state,  covers  the  case  of  one  who,  in  such  cir-; 
cumstances,  violates  a  law  regulating  primary  elections." 
And  in  a  constitutional  pi-ohibition  against  increasing  or  di- 
minishing the  salary  or  "  emoluments  "  of  any  ])nblic  officer 
dnrit)g  his  term  of  office,  the  latter  term  was  held  to  include 
any  perquisite,  advantage,  profit,  or  gain  arising  to  one  from 
the  possession  of  a  public  office ;  e.  </.,  where  it  was  the 
official  duty  of  a  sheriff  to  board  prisoners  in  the  county 
jail,  the  sum  secured  to  him  by  law  as  compensation  for  this 


58  Wavne  Co.  v.  Detroit,  supra.  ^o  People  v.  Fancher,  50  N.  Y. 

29  Feiinell  v.  Bay  City,  3G  Mich.  288. 

180.     But  tiie  penal  provisions  of  a  ^'  Carpenter  v.    People,    8   Col. 

state  law  are  not  superseded  by  an  116,  105. 

unnecessary  ordinance  to  the  ramc  ^-  Leonard  v.    Com'th,  112  Pa 

effect :    Wayne    Co.    v.    Detroit,  St.  607. 
supra. 


§509] 


CONSTITUTIONS. 


717 


service."  A  provision^*  that  each  stockholder  in  a  corpora- 
tion shall  be  liable,  over  and  above  the  r^lock  owned  by  him 
and  the  amount  unpaid  thereon,  to  a  further  sum  equal  in 
amount  to  such  stock,  refers  not  only  to  stock  subt^cribed  for 
by  him,  but  also  stock  distributed  to  him  as  a  dividend.'"^ 
Tlie  technical  fiction  that  the  entire  session  of  a  court  is  held 
on  the  first  day  thereof,  does  not,  in  a  constitutional  pro- 
vision allowing  exceptions  to  be  taken,  etc.,  during  the  whole 
of  the  "  sitting,"  permit  the  reading  of  the  latter  word  as 
sj-nonymous  with  "  term  ;"  but  such  a  provision  is  to  be  re- 
garded merely  as  extending  such  right,  ordinarily  to  be 
exercised  at  the  time  the  ruling,  etc.,  is  made,  during  the 
whole  remainder  of  the  day's  sitting  and  before  adjournment 
for  the  day.^" 

§  509.  Sxternal  Circumstances.  History.  Debates. —  [It  is  but 
a  coi'ollary — applicable  l)oth  to  statutes  and  to  constitutions, 
though  perhaps  more  strongly  to  the  latter — of  the  principle 
already  stated,  that  the  intent  of  a  provision  must  be  found  in 
the  instrument  itself  ;  that  no  effect  can  be  given  to  an  inten- 
tion not  expressed  by  its  language  ;  that  the  question  for  the 
interpreter  is  not  what  the  framers  meant,  as  distinguished 
from  what  the  language  expresses,  but  simply  what  is  the 
meaning  of  the  words;"  that,  if  they  convey  a  definite 
meaning,  involving  no  absurdity,  no  contradiction  of  other 
parts  of  the  instrument,  that  meaning,  apparent  ou  the  face, 
is  to  be  adopted  f^  and  that,  where  the  text  is  plain  and  un- 
ambiguous, courts  are  not  at  liberty,  in  putting  an  interpre- 
tation npon  it,  to  search   for  its  meaning  bej'ond  the  instru- 


''^  Apple  V.  Crawford  Co.,  105 
Pa.  iSt.  300.  Conip.  State  v. 
Spencer,  91  Mo.  20G;  State  v. 
Dillon,  90  Id.  229.  post,  §  519. 
Under  the  24th  Ameudmcnt  of  the 
Councetieut  constitution,  forbid- 
ding the  increase  of  compensation 
of  a  public  oiBcer,  to  take  effect 
during  liis  continuance  in  office, 
the  vote  of  city  councils  to  pay  a 
joint  standing  committee  for  servi- 
ces rendered,  tlie  office  of  council- 
man being  one  ■without  compensa- 
tion and  the  services  those  ordi- 
narily reu<lered  by  such  a  commit- 
tee,  was   iield   illegal  :   Garvey  v. 


Hartford,  54  Conn.  440.  But  con- 
tinuance in  office  was,  in  Smith  v. 
Watcrbur}^  Id.  174,  declared  to 
mean  continuance  under  one 
ap])ointmcni,  not  under  a  re-ap- 
pointment. 

•■'  Ohio  Const.,  Art.  xii,  §  3 

35  See  Brown  v.  Hitchcock,  36-. 
Ohio  St.  6G7;  Aultman's  App.,  98 
Pa.  St.  505. 

^'^  Costigin  V.  Bond,  C5  jNfd.  122. 

2'  Beardstown  v.  Virginia,  7(> 
111.  34. 

28  Hawkins  v  Carroll.  Co.,  50 
Miss.  735, 


718  CONSTITUTIONS.  [§  510 

ment  itself/'  or  to  resort,  for  that  purpose,  to  extrinsic  facts 
and  circumstances."  But,  as  in  tlie  case  of  statutes,  this 
rule  extends  only  so  far  as  the  language  of  a  constitutional 
provision  is  plain  and  unambiguous, — though,  in  the  latter 
case,  no  ambiguity  would  arise  from  the  mere  iact  that  a 
phrase  is  susceptible  of  a  technical  as  well  as  of  a  more 
popular  meaning,  the  latter  being  ordinarily  preferred,*' — and 
where,  understood  in  that  sense,  it  raises  no  conflict  with 
other  provisions  in  the  same  instrument,  and  gives  occasion 
to  no  absurd  effect.  An  intention  to  produce  such  results 
caimot,  of  course,  be  imputed  to  the  framers  of  a  constitu- 
tion, or  to  the  people  adopting  it,"  any  more  than  to  the 
Legislature  in  passing  a  statute.  And  hence,  to  avoid  them, 
aids  in  the  construction  of  constitutional  provisions  are 
recognized  as  permissible,  analogous  to  those  allowed  in  the 
construction  of  statutes. 

§  510.  [Thus,  it  is  a  sound  rule  of  constitutional  as  well  as 
statutory  construction,  that  the  previous  history,  the  circum- 
stances surrounding  the  foundation  of  a  constitution,  arc  to  be 
regarded  by  the  courts,"  and  as  part  of  them,  to  some  extent, 
the  history  of  the  constitution  itself,  in  the  course  of  its 
preparation  at  the  hands  of  the  convention  that  framed  it." 
The  propriety,  indeed,  of  resorting  to  the  debates  in  the  con- 
stitutional convention,  upon  the  adoption  of  a  provision 
under  construction,  has  been  denied."  "They  are  of  value 
as  showing  the  views  of  individual  members,  and  as  indicating 
the  reasons  for  their  votes.  But  they  give  us  no  light  as  to 
the  views  of  the  large  majority  who  did  not  talk ;  much  less 
of  the  mass  of  our  fellow  citizens  whose  votes  at  the  polls 
eave  that  instrument  the  force  of  fundamental  law.'-"  It 
will  be  observed  that  such  a  reference  is  not  strictly  analo- 
gous to  a  reference  to  the  journals  of  the  Legislature,  show- 

39  Chesapeake,  etc.,  R.  R.  Co.  v.  ^s  Kennedy  v.  Gies,  25  Mich.  83; 

Miller,  19  \V.  Va.  408.  Cronise  v.  Cronise,  54  Pa.  St.  255, 

'i"  Stnrc;cs  v.    Crowninshield,  4  261;  Cooley,  Const.   Lim.,  80,  81. 

AVheut.   202,   203;  Cooley,    Const.  See  Allegheny  Co.  v.  Gibson,  post, 

Lim..  G8.  §511. 

^'  See  ante,  ?^  507,  508.  ^  See  Id.  79-81. 

"2  See  Hills  v.  Cliica2;o.  60  111.  ^^  Taylor   v.  Taylor,   10   Minn. 

86;   Hawkins   v.    Carroll    Co.,    50  107. 

Miss.    735  ;    Sturgcs  v.    Crownin-  •»*  Com'th  v.  Balpli,  111  Pa.   St 

siieild,  supra.  305,  3S0,  per  Paxson,  J. 


§  510]  CONSTITUTIONS.  719 

ing  the  various  steps  in  the  passage  of  a  statute ;  but  ratlier 
to  a  reference  to  the  expression  of  opinions  by  individual 
legislators  upon  the  signification  of  its  enactments/^ — a  mode 
of  construction,  which,  as  to  statutes,  has  been  uniformly 
rejected  as  intolerable  :"*  or  perhaps,  as,  in  the  adoption  of  a 
constitution,  the  people  at  large  must  be  regarded  as  the  leg- 
islators, the  relation  of  the  convention  preparing  it  for  sub- 
mission may  be  still  more  properly  compared  to  that  of  a 
special  committee  of  the  Legislature  charged  with  the  draft- 
ing of  a  statute  for  its  acceptance  or  rejection,  and  it  would 
never  be  deemed  legitimate  to  recur  to  the  debates  in  the 
committee  room  as  a  source  of  the  interpretation  of  a  stat- 
ute."® Yet  this  great  stretch  of  principle  seems,  upon  the 
whole,  to  be  sanctioned  by  judicial  authority,  in  the  interpre- 
tation of  constitutional  provisions,  the  theory  being,  that, 
members  of  the  convention  having  declared  that  a  certain 
provision  was  designed  to  have  a  certain  effect,  and  no 
member  expressing  a  different  view,  the  people  voted  for 
the  constitution  in  the  light  of  this  construction,  and 
therefore  adopted  it/"  and  the  limit  of  the  applicability  of 
the  rule  being  "  that  the  debates  are  not  to  be  resorted  to 
when  there  is  no  room  for  construction  ;"  but  where 
the  meaning,  from  any  cause,  is  in  doubt,  the  debates 
may  be  considered  /'^^  and  that  even  the  ascertained  under- 
standing of  the  convention  is  not  to  be  permitted  to  override 
the  more  natural  and  obvious  meaning  of  the  words,  in 
"which  the  people  adopting  the  constitution  must  be  supposed 
to   have    understood   them.^^     Moreover,  the  circumstances 

■*■'  See    the     dissenting    opinion  62(5,  643. 
•of  Gibson,  J.,   in  Eakin  v.  Kaub,         ^'  /.  e.,  where  the  text  of  a  con- 

13     Serg.     &     R.     (Pa.)    330,    at  stitutional  provision  is  not  arabig- 

p.  353  :  "  A  constitution,  or  a  stat-  nous  :  Chesapeake,  etc.,  R.  R.  Co. 

ute.    is    supposed    to   contain    the  v.  ]\Iiller,  19  \V.  Va.  408.     See  PiJce 

whole  will  of  the  body  from  which  Co.  v.  Rowland,  post.  ^  528. 
il  emanated  ;  and  I  would  just  as  '-   Spriuglield   v.    Edward^,   ul)i 

soon  resort  to  the   debates   in   the  supra.      And  see  Catlin  v.  Smith, 

Legislature,  for  the  construction  of  2  Serg.  &  R.  (Pa.)  2G7,  272  ;  Fry's 

an    act    of    assembly,    as    to    the  Election,  71  Pa.  St.  302,  306  ;  JMoi'- 

debates  in  the  convention,  for  the  ri.son  v.  Bacliert,  112  Id.  322,  329  ; 

construction  of  the  constitution. "  Elton   v.   Geissert,   10  Phila.  (Pa.) 

■"*  Ante,  §§  30.  31.  330  ;  Cooley,    Const.  Lim.,  79,  80, 

^^  Ante,   §^  32,   68.      See,  also,  and  cases  there  cited. 
Tavlor  v.   Taylor,   10  Minn.  107,  "  Cooley.  C.  L.,  80  (cit.  State  v. 

infra.  Mace,  5  Aid.  337  ;   JManly  v.  State, 

«"  Springfield  v.  Edwards,  84  111.  7  Id.  135  ;  Hills  v.  Chicago,  60  111. 


720  ....NSIITLTIUNS.  [§  '^ll' 

attending  the  deliberations  of  a  convention  may  be  such  as 
to  preclude  any  consideration  of  them  as  throwing  a  ligiti- 
niate  light  upon  the  interpretation  of  the  constitution  that 
finally  emanated  from  them.  Thus  it  was  said  in  a  case  in 
Michigan  :  "  If  snch  debates  could  ever  properly  be  resorted 
to  as  aids  in  interpretation,  it  seems  quite  obvious  tliat  such 
rule  could  not  properly  ])e  followed  in  this  case.  The  con- 
vention that  framed  the  constitution  divided  on  the  first  day 
of  the  session,  forming  two  organizations,  and  afterward  a 
joint  committee  of  each  reported  a  constitution  that  each 
wing  adopted,  and  which  is  now  the  constitution  of  our  state. 
As  well  might  we  resort  to  the  debates  in  a  committee  room.''^* 

§  511.  Preamble. — [It  is  evident,  that,  only  in  the  most 
general  way,  can  the  preamble  of  a  constitution  influence  the 
construction  of  its  provisions.  As  affecting  the  general 
character  of  the  instrument,  it  has,  indeed,  been  resorted  to. 
The  weight  attached  to  the  phrase  "  we,  the  people,"  in  the 
preamble  of  the  federal  constitution,  and  the  arguments  based 
upon  it,  are  a  familiar  instance  of  this  species  of  construc- 
tion." In  a  recent  and  elaborately  considered  casCj'^^au  argu- 
ment was  drawn,  as  to  the  general  intent  of  a  new  constitu- 
tion to  abrogate  previous  legislation,  from  the  different  object 
of  the  first  constitution  adopted  by  the  state,  as  shown  by 
its  preamble.  "The  preamble  to  the  constitution  [of  1776] 
recites  the  rights  of  the  people  and  the  oppressions  of  the 
crown,  and  declares  that  all  allegiance  and  fealty  to  the 
said  king  and  his  successors  are  dissolved  and  at  an  end,  and 
all  power  and  authority  derived  from  him,  ceased  in  these 
colonies.  It  is  not  difficult  to  understand  why  this  principle 
should  be  asserted  in  a  constitution  that  was  the  outgrowth 
of  a  revolution,  and  of  a  total  severance  of  all  political  rela- 
tions between  the  colonies  and  the  mother  country.  In  its 
application  to  the  present  times  we  must  not  overlook  the  fact 
that  the  conditions  are  essentially  different.  The  convention 
of  1873  was  not  throwing  off  the  yoke  of  an  oppressor  and 

86  ;  Beardstown  v.  Virginiii,  76  Id.  "  S?e  Miirliu  v.  Hunter's  Lessee, 

34,  all  supra);   Pike   Co.  v.   Row-  1  Wheat.  304,  324. 

land,  !)4  Pa.  St.  238,  249.  ^^  Allei^heny  Co.  v.   Gibson,  90' 

^^   Taylor  v.    Tavlor.    10   Minn.  Pa.  St.  397. 
107. 


<^§  512,  513]  CONSTITUTIONS.  721 

abrogatiug  Jaws  imposed  upon  the  people  by  a  parliament 
not  in  sympathy  with  their  views,  and  in  whose  deliberations 
they  had  no  voice.  The  convention  was  simply  the  people 
of  thj  state,  in  a  representative  capacity,  it  is  trne,  sitting  in 
judgment  upon  their  own  acts,  altering  and  modifying  their 
own  constitution  to  snit  the  progress  of  the  age,  and  cliang- 
ing  their  own  laws  where  deemed  essential  to  the  welfare  of 
the  state.  To  such  a  body,  so  constituted,  no  intention  tO' 
abrogate  all  that  had  gone  before  can  be  imputed,  unless  such 
intention  be  clearly  expressed."" 

§  512.  Titles  or  Captions  of  Articles,  etc.— [Perhaps,  even  less 
importance  is  to  be  attributed  to  the  titles  of  the  various 
subdivisions  of  a  constitution,  than  to  similar  features  in 
statutes.^'  It  is  said  that  scarcely  any  significance  can  be 
attached  to  the  wording  of  the  captions  or  titles  of  the  several 
articles  of  a  constitution.  "  At  most,  they  do  not  profess  to 
indicate  more  than  the  general  character  of  the  articles  to 
which  they  are  prefixed.  That  they  are  intended  as  critical 
and  precise  definitions  of  the  subject  matter  of  the  articles, 
or  as  exercising  restraining  limitations  upon  the  clear  expres- 
sions therein  contained,  cannot  be  pretended."^'  llence  the 
fact  that  a  particular  article,  according  to  its  title,  purports  to 
treat  of  municipal  oflicers,  will  not  preclude  an  application 
to  such  of  the  provisions  of  another  article  referring  broadly 
to  "  all  officers,"  "  officers,"  "  appointed  officers,"  "  officers 
elected  by  the  people,"  and  "  civil  officers."^" 

§  513.  Schedule. — [The  schedule  of  a  constitution  is  a 
temporary  provision  for  the  preparatory  machinery  necessary 
to  put  the  principles  of  the  same  in  motion  without  disorder 
or  collision.*'  It  forms,  indeed,  a  part  of  the  constitution, 
so  far  as  its  temporary  purposes  go,  and  to  that  extent  is  of 


^''  Ibid.,  at  p.  406.  per  Paxson,  J.  ^^  Hoi.;^eman  v.  Com'th,  100  Pa. 

68  Ante,  §§  69,  70,  to  the  cases  St.  222.  231,  per  Green,  J. 
cited  with  which,  m;iy  be  added  *"•  Ibid.  Compare,  however,. 
Cookv.  Fed.  Life  Ass'n.  (la.)  35  Pierce  v.  Com'th,  104  Pa.  St.  150, 
N.  West.  500,  where  an  act  "relat-  155,  and  Bahlwin  v.  Philadelphia, 
inu;  to  insniance  and  fire  insurance  99  Id.  164,  170,  where  .such  head- 
companies,"  but  pub'.ii^hed  under  a  ings  or  titles  were  referred  to.  in- 
lieading- "  Relating  to  Fire  lusur-  cidentally,  in  aid  of  construction, 
ance,"  was  held,  nevertheless  to  '''  Com'ih  v.  Clark,  7  Watts  & 
apjilv  to  all  insurance  companies.  S.  (Pa.)  127,  133. 

46 


72-2  CONSTITUTIONS.  [§  ;">  1 3 

eqiKil  antlioritj  with  the  provisions  in  the  body  of  the  instru- 
ment upon  tlie  various  departments  of  the  state."  But  its 
nses  are  temporary  and  auxiliary,  and  its  purpose  is  not  to 
•control  the  principles  enunciated  in  the  constitution  itself, 
but  to  carry  the  whole  into  effect,  without  break  or  inter- 
val." Thus,  a  certain  section  of  a  constitution  declared  that 
"all  ofHcers  whose  election  or  appointment  is  not  provided 
for  in  this  constitution,  shall  be  elected  or  appointed  as  shall 
be  directed  by  law."  The  election  or  appointment  of  canal 
commissioners  was  not  provided  for  by  the  constitution,  and 
was  consequently  to  be  provided  for  by  law.  A  provision 
in  the  schedule  of  the  constitution  declared  that  the  appoint- 
ing power  should  remain  as  theretofore,  and  that  all  officers  of 
the  executive  department  should  continue  in  office  until  the 
Legislature  should  pass  the  necessary  laws,  and  appointments 
be  made  thereunder.  Previously  to  the  adoption  of  the 
constitution,  the  canal  commissioners  were  appointed.  They 
were  consequently  to  remain  in  office  until  laws  for  elections 
and  new  appointments  should  be  made.  But  the  schedule 
further  directed  that  the  first  Legislature,  under  the  new- 
constitution,  should  pass  those  laws.  This  the  first  Legis- 
lature failed  to  do,  in  consequence  of  a  difference  that  took 
place  between  the  senate  and  the  house  of  representatives. 
x\n  Act  passed  by  a  subsequent  Legislature  on  the  subject 
was  assailed  as  being  unconstitutional,  it  being  claimed  that 
the  power  of  the  Legislature  to  pass  such  an  act  expired 
with  the  first  Legislature  under  the  new  constitution,  and 
that  consequently  the  right  of  appointment  remained  with 
the  executive.  It  was  held,  however,  upon  the  principles 
stated  concerning  the  function  of  the  schedule,  that  it  could 
not  control  the  princi[)les  or  construction  of  the  constitution 
itself  ;  that,  therefore,  the  provision  as  to  the  time  when  the 
Legislature  was  to  exercise  the  power  given  it  in  the  premises, 
must  be  deemed  merely  directory  ;  and  that  the  legislation 
referred  to  was  consequently  valid  and  constitutional."     Nor 

8"^   Stewart   v.    Crosby,   15   Tex.  «■*  Com'th      v.      Cliirk,      supni. 

546.  (Comp.  Coni'tli  v.    Lcib,  9  W:iUs 

«■*  Com'th   V.   Clark,  supra;  liar-  [Pa.]   200,   wiiere  it  was  Ik'M  that 

risoii   V.     (^ourtvight,    4    Luz.     L.  tho   tirst   Legislature  liaving  exer- 

Jioix.  (Pa.)  207;  7  Leg.  Gaz.  400.  ciscd      a      power     of     legislation 


§513] 


CONSTITUTIONS. 


723 


can  a  provision  found  among  the  temporary  provisions  of  the 
schedule  be  given  the  eflfect  of  supplying  permanently  an 
omission  in  the  body  of  the  instrument  which  may  have 
been  designed  and  cannot  be  regarded  as  an  oversight.  So, 
where  the  body  of  the  constitution  contained  a  provision  to 
the  effect  that  certain  designated  officers  should,  in  certain 
eases,  hold  over,  and  among  the  provisions  of  the  schedule 
was  found  one  of  similar  purport  concerning  certain  other 
officers  not  included  in  the  constitutional  provision,  nor  in 
any  part  of  the  constitution  permitted  to  hold  over,  it  was 
held  that  the  provision  in  the  schedule  was  shown  by  its  place 
in  the  same  to  be  intended  as  temporary  merely,  as  otherwise 
it  would  have  been  put  in  the  body  of  the  instrument  ;  that  its 
omission  from  the  latter  could  not  be  presumed  to  be  an 
oversight  merely,  to  be  supplied  by  a  transfer  of  the 
scheduled  provision  ;  but  that  the  enumeration  of  the  per- 
sons in  the  permanent  provision  was  rather  to  be  treated  as 
an  exclusion  of  those  designated  in  the  temporary  one." 


conferred  upon  it  by  another  sec- 
tion of  the  same  schedule — that  of 
dividing  the  associate  judges  of  the 
common  pleas  courts  into  classes, 
iu  order  that  they  might  be  dis- 
placed in  turn,  accoiding  to  sen- 
iority of  commission,  in  a  certain 
number  of  years. — a  subsequent 
Legislature  could  not  remodel  the 
classilication  then  established  on 
the  ground  of  mistake;  because  the 
power  was  exhausted  by  the  exe- 
cution of  it  and  was  then  gone, 
and  because  the  later  legislation 
would  have  come  too  late  for  the 
object,  the  period  for  the  expira- 
tion of  commissions  of  the  first 
class  having  already  elapsed  before 
the  second  attempt  at  legislation 
was  made.)  And  see  Elton  v. 
Oeissert,  10  Phila.  (Pa.)  830,  where 
it  was  held  that  a  provision  in  the 
schedule  saving  existing  officers, 
"unless  otherwise  provided  in  this 
constitution."  did  not  save  the 
office  of  leather  inspector,  the  con- 
stitution declaring  that  "no  state 
office  shall  be  continued  or  created 
for  the  inspection  or  measuring  of 
any  merchandize,"  etc.  See  infra, 
note  78.)  And  where  art.  5,  §  o, 
of  a  constitution  gave  the  Supreme 
Court  original  jurisdiction  in  cer- 


tain injunctions,  mandamus  to 
courts  of  inferior  jurisdiction,  and 
quo  warranto  to  certain  state  offi- 
cers, and  declared  that  it  should 
not  exercise  any  other  original 
jurisdiction  ;  and  §  11  of  the  sched- 
ule provided  that  all  courts  of 
record  and  all  existing  courts, 
which  were  not  specified  in  the 
constitution,  (see  ^  532),  should 
continue  in  existence,  up  to  a  cer- 
tain date  without  abridgment  of 
jurisdiction,  it  was  held  that  the 
Supreme  Court  retained  jurisdic- 
tion in  mandamus  only  as  to  courts 
of  inferior  jurisdiction:  Com'th  v. 
Hartranft,  77  Pa.  St.  154. 

'^'■>  State  V.  Taylor,  15  Ohio  St. 
137.  See.  however,  Com'th  v. 
Pattison,  109  Pa.  St.  165,  where  it 
was  held  that  §  IG  of  the  schedule 
of  Pa.  ccnistituticm  of  18T4,  that 
"after  the  expiration  of  the  term 
of  any  president  judge  of  any 
court  of  common  pleas,  in  com- 
mission at  the  adoption  of  this 
constitution,  the  judge  of  such 
court,  learned  in  the  law  and  oldest 
in  commission,  shall  be  the  presi 
dent  judge  thereof,"  applied  no\ 
only  to  judges  whose  commissions 
were  in  force  at  the  time  of  the 
adoptiou   of  the  constitution,  hxn 


724  CONSTITUTIONS.  [§  514 

§  514.  Context.  Bill  of  Rights.— [As  in  the  case  of  a  statute, 
so  in  th:it  of  a  constitution,  it  may  be  regarded  as  at  least 
prima  facie  true  that  the  same,  or  substantially  same, 
expression  is  used  in  the  same  sense  wherever  it  occurs."" 
It  is  essential,  therefore,  in  the  construction  of  a  constitutional, 
as  well  as  in  that  of  a  statutory  provision,  that  the  entire 
instrument  be  considered  in  order  to  ascertain  the  sense  in 
which  a  particular  expression  is  used."  Thus,  to  illustrate 
by  a  few  recent  instances,  a  constitutional  provision  confer, 
rinir  upon  the  governor  of  the  state  the  right  and  duty  of 
tilling  vacancies  in  elective  offices  until  the  next  or  second 
succeeding  '•  general  election,"  as  the  case  might  be,  was,  by 
comparison  of  the  various  articles  of  the  constitution,  ascer- 
tained to  mean  the  general  election  occurring  in  the  month 
of  November,  and  not  to  apply  to  offices  to  l)e  filled  at  the 
February  election  ;"'  and  by  the  same  method,  a  provision 
that  the  judge  "  oldest  in  commission  "  should  be  president 
iudge  of  a  court,  was  found  to  refer  to  the  judge  oldest  in 
continuous  service."'  More  especially  does  this  principle 
apply  where  the  text  of  a  provision  contains  expressions 
calling  attention  to,  and  assimilating  its  own  phraseology  to 
that  of,  other  parts  of  the  instrument.  So  the  nature  of  the 
residence  required  by  the  constitution  of  Pennsylvania,  in 
order  to  confer  the  right  of  voting,  was  at  least  partially 
determined  from  a  comparison  of  various  other  provisions, 
one  of  which,  evidently  contemplating  a  permanent  residence^ 
by  using  the  phrase  "  as  aforesaid"  stamped  the  others  with 
tiie  like  character.'"  But,  considering  the  vast  vai-iety  of 
matters  treated  of  in  a  constitution  and  the  necessary  gener- 
ality of  its  language,  the  principle  in  question  is  obviously  of 
less  force  and  value  in  its  application  to  the  terms  occurring 
in  such  an  instrument,  than  in  the  case  of  a  statute  confined 
to  a  single  subject  and  purpose.     "  In  common  language, 

nho  to  all  iuclges  who    mi2;lit  be  Moers  v.  Reading,  supra;  Cooley, 

subscifiicnlly  commissionecU  i-  e.,  C  L.,  70,  71,  and  cases  there  cited, 

that  it  was  of  permanent,  and  not  ^  ^"^  People  v.  Callen,  101  Pa.  bt. 

of  merely  temporary,  force.  ^'^•'^-          ..           -r^      .           ,/^o   -n 

6«  J^Ioers  V    Heading,  21  Pa.  St.  «^  Com'th   v.   Pattison,   109  Pa. 

188    '>01-   Cooley,  C.    L.,  74.  cit.  St.  165,  170. 

Brien  v.  Williamson,  8  Miss.  14.  '"  Fry's  Election,  71  Pa.  St.  303, 

"  Manly   v.    Slate,    7   Md.    135;  306. 


§515]  CONSTITUTIONS.  ,  725 

the  same  word  lias  different  and  various  meanings,  and  the 
peculiar  sense  in  which  it  is  used  in  any  sentence  is  to  be 
determined  by  the  context.'"'  "  It  does  not  follow,  either 
logically  or  grammatically,  that,  because  a  word  is  found  in 
one  connection  in  the  constitution  witli  a  definite  sense,  there- 
fore the  same  -sense  is  to  be  adopted  in  every  other  connection 
in  which  it  occurs."'*  Great  caution  is,  therefore,  to  be 
observed  in  applying  this  ju-inciple  as  a  rule  of  constitutional 
construction." 

§  515.  [A  comparison  of  the  whole  instrument,  however, 
as  in  the  case  of  statutes,  serves  still  another  and  more  impor- 
tant purpose.  Similarly  to  the  rule  applicable  to  parts  of  the 
latter,"  though  probably  not  quite  to  the  same  extent,'^  a  con- 
struction which  raises  a  conflict  between  parts  of  a  constitution 
is  inadmissible,  when,  by  any  reasonable  interpretation,  they 
may  be  made  to  harmonize ;'"  and  equally  inadmissible  is  a 
construction  which  would  nullify  or  disregard  any  portion, 
any  provision,  clause,  or  word  in  the  instrument."  "  One  part 
may  qualify  another  so  as  to  restrict  its  operation,  or  apply 
it  otherwise  than  the  natural  construction  would  require  if 
it  stood  by  itself;  but  one  part  is  not  to  be  allowed  to  defeat 
another,  if  by  any  reasonable  construction  the  two  can  be 
made  to  stand  together."'*  A  striking  application  of  this 
principle  occurred  in  the  construction  of  two  provisions  of 
the  constitution  of  Pennsylvania,  the  first  of  which  declares 
that  each  house  of  the  Legislature  shall  judge  of  the  election 
and  qualification  of  its  members  ;  the  other,  that  the  trial 
and  determination  of  contested  elections  of  members  of  the 
Legislatures,  and  other  officers  named,  shall  be  by  the  courts 
of  law  under  general  laws,  to  be  enacted  by  the  Legislature. 

"  Cherokee  Nution  v.  Georgia,  connection  in  which   they   occur, 

~>  Pet.  1,  19.     Still,    in  that    case,  see  Potter's  Dwarris,  678. 
the  word  "  foreiirn  "  in  connection  '*  See  ante,  §^  35-41. 

with    "state"   and   "nation"  was  "See     Houseman    v.     Com'th; 

held  to  have  the  same  nu-aning,  to  Cantwell  v.  Ow  ns,  infra, 
the  exclu.-i()n  of  Indian  tribes.     See  "People  v.  Wright,  t>  Col. 93. 

g  533.  n.  208.  "  Cooley,  C.  L.,  71. 

^-' Story.  Const.,  §  454.  ""^Ibid.     In  case  of  irreconcilable 

"  Coolo}',  C.  L.,  75.     For  some  repugnancy,  tlie  provision  last  in 

illustrations  of  the  use  of  words,  order  of  time  and  local  position  is 

in  the  federal  constitution,  in   dif-  said   to  prevail:  Quick  v.  White- 

fereut    senses,    varying  with    the  water  Tp.,  7  Ind.  570,  cited  ibid., 

note  3. 


72G  •  CONSTITUTIONS.  [§516 

It  \rsis  held  that  the  hitter  provision  did  not  take  from  each 
branch  of  the  Legislature  the  power  given  it  by  the  former, 
but  was  intended  only  to  provide  for  a  method  of  procuring 
and  presenting  to  the  same  the  evidence  and  information 
necessary  for  an  intelligent  decision,  and  to  secure  early 
action."  Whilst,  however,  it  may,  in  general,  be  laid  down 
that  the  intent  of  a  particular  provision  of  a  constitution  is 
to  be  gathered  from  the  whole  of  it,*"  it  is  intimated  that  an 
argument  from  the  reading  of  other  clauses  as  to  the  con- 
struction of  a  particular  one,  is  of  force  only  where  the 
meaning  of  the  latter  is  dubious,  or,  at  least,  that  such  an 
argument  becomes  far  less  persuasive  where  the  meaning  of 
the  provision  is  not  doubtful."  In  the  latter  case,  indeed, 
it  is  said  that  the  courts  have  no  right  to  place  a  different 
meaning  on  the  words  employed,  because  their  literal  inter- 
pretation may  happen  to  be  inconsistent  with  other  provisions 
of  the  instrument  concerning  other  subjects.^' 

§  516.  [The  Bill  of  Eights  and  the  Constitution  are  also 
to  be  construed  together  ;''  and  it  has  been  held,  tl.at,  if  the 
provisions  in  the  body  of  the  constitution  differ  from  those 
of  the  bill  of  rights,  the  former  must  limit  and  qualify  the 
latter  to  that  extent.^* 

"  McNeill's  Elect'n,  111  Pa.  St.  the  power  or  discharge  the  duty  in 

235.     Seethiscase,  also  ante,  §181.  the  particular  instance  is  as  man- 

*'0  District  Tp.    v.    Dubuque,    7  datory  as  the  general  prohibition  :" 

Iowa     262;  People   v.    Potter,  47  San  Francisco,  etc.,  R.  R.   Co.  v. 

>^   y'  J575  State  B'd  of  Equalization,  (Cal.)  13 

"  '"  Houseman  v.  Com'th,  100  Pa.  Am.   &  Eng.    R.    Cas.  248  (Syll.) 

St    '^22   231  See,    also,    Elton    v.    Geissert,    10 

^■^Cantwell   v.    Owens,    14  Md.  Phila.  (Pa.)  330,  333  ;  supra,  note 

215.     And   it   has   been    held  that  64. 

the  r'de  tliat  an  ascertained  gen-  "^  Baltimore  v.    State,    15    Md. 

erul  intent  will  control  a  particular  376.     And  that  provisions  of   the 

one   must  yield,  where  the   latter  schedule  are  to  be  construed  with 

is  i)lainly  expressed,  in  which  case  reference  to,  and  in  harmony  with, 

effect  must  be  given  to   it,  though  provisions  of  the  body  of  the  con- 

api)arently  opposed  to  the  general  stitution,  see  ante,  §  513,  and  note 

intent  deduced  from  other  parts:  64. 

Warren  v  Shuman,  5  Tex.  441,  **^  Ibid.  It  would  seem,  how- 
cited  in  Cooley,  C.  L.,  71,  note  3.  ever,  in  view  of  the  importance 
"If  in  one  section,  a  power  is  spe-  attached  by  popular  sentiment  to 
citically  confeired,  or  a  duty  the  provisions  of  a  bill  of  rights, 
specially  enjoined,  which  'n  gene-  (see  as  to  effect  of  the  want  of  it  in 
ral  terms,  is  prohibited  by  other  the  federal  constitution,  2  Bancr., 
section.?,  '  the  power  or  duty  Hist.  Const.,  pp.  272,  291),  as  the 
specially  conferred  or  enjoined  very  foundation  upon  which  the 
constilvttes  an  exeeplionto  tlie  gen-  organic  law  is  l)Mi!t  u]),  tliatthe 
eral  rule  ;  the  direction   to  employ  reverse  of  the  decision  above  cited. 


§§    oil,    ."ilS]  tX)NSTlTLTIONS.  T27 

§  517.  Superseded  and  Succeeding  Constitutional  Provisions. — 
Statutory  j)rovibioiis,  wliicli  luivc  expired  or  been  repcaled- 
nui3',  as  has  been  seen,"'  be  looked  at  as  aiding  the  construc- 
tion of  other  provisions  and  enactments  in  pari  materia. 
Similarly*  chiuses  that  have  been  eliminated  from  a  constitu- 
tion by  amendment,  n^ay  be  referred  to  in  aid  of  the  inter- 
pretation of  others  orioinally  associated  with  them  and 
remainiui;  in  force."  And  with  equal  propriety,  the  differ- 
ences between  the  provisions  of  a  new  constitution  and  those 
of  a  previous  one,  and  the  construction  placed  upon  the  lat- 
ter when  in  force,  may  be  reg-arded  by  the  courts  in  ascer- 
tainino-  the  purpose  and  real  meaning  of  the  new  provis- 
ions." Conversely,  as  will  hereafter  be  seen,  identity  of  lan- 
guage in  an  old  and  new  constitution  may  determine  the  con- 
struction of  the  latter  in  accordance  with  the  construction 
placed  upon  the  former."' 

[And  as  a  statute  may  sometimes  be  best  interpreted  by 
reference  to  a  subsequent  one,*'  so  a  restriction  in  a  later  or 
amended  constitution  upon  the  exercise  of  a  power  assumed 
to  exist  under  a  former  one,  has  been  referred  to  as  "a  clear 
recognition  of  the  power,  outside  of  the  restriction. "°'' 

§  518.  Expansion  and  Restriction  by  Reference  to  Subject  Matter 
and  Object.— [Inseparable  from  the  history  of  a  constitution 
and  the  facts  surrounding  its  creation,  and  therefore  a  potent 
element  in  the  construction  of  its  general  terms,  is  the  con- 
sideration of  the  objects  and  purposes  to  be  accomplished,  or 
the  mischiefs  designed  to  be  remedied  or  guarded  against." 
In  the  interpretation  of  statutes,  these  reflections  may  enlarge 
or  restrict  the  natural  and  literal  significance  of  the  words. 


would  be  the  more  obvious  and  255,  261. 

acceptable  conclusion.  »'  See  Cooley,  C.  L.,  79  ;  People 

s5  ;Vnte,  §§  48,  49.  v.  Chautauqua  Co.,  43  N.  Y.  10. 

"■i  Fletcher  v. '  Peck,   6    Cranch,  See,  as  an   instance,   the  doctrine 

139  stated  and  established  by  decisions 

81  See  Houseman  v.  Coin'th,  100  collected,  in  Cooley,  C.  L.  26,  and 

PiC  St.  223,  230  ;  Buckalew,  Const.  Re  Fitzpatrick,  (R.  I.)  5  New  Eng. 

of   Pa     pp.    45-46,  cit.  People   v.  Kep.  675.  that  the  first  ten  Amend- 

Blodirett,  13  Mich.  147.      See  post,  ments  of  the  U.  S.  Constitution  are 

^  5;>l"  to   be    understood    as    limitations 

*"  *«  Post,  ^  530.  upon    the   ]io\vers    of    the   federal 

89  Ante,  '^  47.  government  only,  except  where  Ihc- 

«>  Cronise  v.  Cronise,  54  Pa.  St.  statutes  are  expressly  mentioned 


728  CONSTITUTIONS.  [§  518 

used,"  and  tliej  are  applitiahle  with  the  same  effect  in  the 
interpretation  of  eonstitntions."  Tiius,  as  an  example  of 
the  extending  influence  of  tliis  rule,  the  phrase  "  counties 
and  townslilps,"  in  the  provision  of  the  Michigan  constitu- 
tion ah-eady  referred  to,"*  was  held  to  include  all  the  muni- 
cipal divisions  of  the  state,  the  word  "  townships  "  being 
understood  in  a  generic  sense  ;"  and  under  the  provision  of 
the  Pennsylvania  constitution  requiring  "municipal  and 
other  corporations  and  individuals  invested  with  the  privilege 
of  taking  private  property  for  public  use,"  to  make  just  com- 
pensation for  property  taken,  injured,  or  destroyed,  it  was 
held  that  a  borough  was  so  liable  in  respect  of  property 
taken  for  a  liighway,  although  not  directly  invested  with 
the  right  of  taking  private  property  for  that  purpose,  but 
doing  so  by  invoking  the  authority  of  the  courts  to  complete 
the  act  of  ai)propriation/''  On  the  other  hand,  the  language, 
especially  of  constitutions,  is  not  to  be  measured  by  nuithe- 
matical  rules,  but  is,  in  the  nature  of  things,  subject  to 
many  implied  exceptions  atul  qualifications,"  arising  from 
the  application  of  general  j)hrases  to  a  variety  of  subject 
matters,  and  from  the  impracticability  of  providing,  in  a 
general  sclieme,  for  every  possible  detail  or  contingency  that 
may  arise.  In  illustration  of  the  restrictive  effect  of  a  due 
consideration  of  the  subject  matter,  purpose  and  scope  of  a 
provision  upon  the  construction  of  general  words  occuning 
in  it,  may  be  cited  the  interpretation  of  the  prohibition 
placed  by  the  constitution  of  Tennessee  upon  the  Legislature 
as  to  the  passage  of  statutes  creating  corporations,  or  increas- 
ing or  diminishing  their  powers  by  special  law,  as  inappli 
cable  to  municipal  corporations,  the  scope  and  purpose  of 
the  provision  having  no  possible  bearing  upon  such,  and  tlic 
subject  matter  of  the  provision  and  the  object  of  the  le- 
striction  having  reference  to  such  legislation  only  as  affect- 
ing individuals  and  private  corporations."     So,  a  provision 

92  Ante,    ;;§   73  ct    seq.,    113   et         ^^  IIM. 

seq.  96  Hcndrick's  App.,  103  P;i.  St. 

93  People  V.  Potter,  47  X.  Y.  375;      358,  361. 

and  see  Moeis  v.  Reading,  21  Pa.  ^t  Kennedy  v.  Gies,  25  IMich.  S;; 

St.  188,  200.  93st,it,,      y       Wilson.     12     1/ ;i 

»•*  See  Wavne  Co.  v.  Detroit,  17  (Tenn.)  246  ;  Ballentiue  v.  Pul.iski 

Mieli.  390,  ante,  §  508.  15  Id.  633.     And  see,  for  a  siniil:;!- 


§  519]  CONSTITUTIONS,  729 

in  a  constitntion  dechiriiiii:  void  all  cliarters  or  grants  of 
special  or  exclusive  privileges  under  which  a  bona  fide 
organization  and  commencenient  of  business  should  not  have 
taken  place  at  the  time  of  its  adoption,  was  held  intended  to 
extinguish  avast  number  of  charters  obtained  for  speculative 
purposes,  under  which  no  such  organization  or  commence- 
ment of  business  had  been  effected,  but  which  were  beinor 
hawked  about  to  the  manifest  shame  of  the  commonwealth, 
but  never  designed  to  repeal  an  act  of  assembly  conferring 
certain  powers  upon  a  municipality  as  to  the  construction  of 
water  works  and  the  supplying  of  water  to  its  citizens,  for 
the  mere  reason  that  it  had  not  been  exercised  in  whole  or 
in  part.**  Again,  a  provision  forbidding  the  Legislature  by 
any  law  to  create,  renew  or  extend  the  charter  of  more  than 
one  corporation,  was  held  not  to  be  violated  by  an  act  giving 
building  associations,  whose  charters  had  expired,  the  right  to 
sue  upon  outstanding  mortgages;  the  purpose  of  the  provis- 
ion being  "to  prevent  improper  combinations  from  obtain- 
ing privileges  detrimental  to  the  public  welfare  .  .  not  to 
prevent  the  Legislature  from  giving  to  other  corporations, 
which  had  fulfilled  their  general  purposes,  authority  to  collect 
and  distribute  their  remainina:  assets.""" 

§  519.  [So,  again,  the  term  "  inh;ibitant,"  '•'  resident,"  "  per- 
son," may  have  an  enlarged  or  restricted  meaning,accordingto 
the  purpose  evinced  by  the  provision  in  which  it  occurs.  Thus 
in  a  clause  requiring  one,  in  order  to  be  qualified  to  serve  as 
•a  representative,  to  have  been,  for  one  year  next  preceding 
his  election,  an  "  inhabitant "  of  the  district  for  which  he  is 
chosen,  that  phrase  was  held  obviously  to  imply  a  require- 
ment of  citizenship,  but  not  of  citizenship  for  an  entire  year ; 
so  that  an  alien  who  had  been  an  inhabitant  for  the  required 
length  of  time,  but  naturalized  within  a  year  preceding  his 
election,  was  qualified.'"     Under  a  provision  requiring  as  a 

■  construction  of  a  similar  provision,  change   its   name   and    extend    its 

Moers  V.  Reading,  21  Pa.    St.  188.  road  an  act  rcnewinsj:  or  extending 

^3  Leliiirli  Water  Co.'s  App.,  102  a    special    act    of    inforporuliou  : 

Pa.  St.  51o,  528.  Attj--Gen.  v.  Jov,  (Mich.)    16   Am. 

>»"  Cooper  V.  Oriental  S.  &  L.  &  En-r.  11.  Cas.  "(343,  651. 

Ass'n,  lOOPa.  St.  402,  407.     Nor  is  "»   Op.    of  Justices,   122  Mass. 

an  act  enabling  a  railroad  conijiany  594. 
jncorporated  under  a  special  act  to 


730  CONSTITUTIONS.  [§  519 

condition  precedent  of  tlie  right  to  vote  a  residence  in  the 
state  for  a  certain  length  of  time,  and  in  the  election  district 
or  precinct  for  a  prescribed  period,  the  word  "  residence,"  it 
wonld  seem,  should  be  .nnderstood  in  its  strict  and  technical 
sense,  as  implying  a  permanency  of  abode;  for  the  object  of 
snch  a  provision  clearly  is  to  "  prevent  frauds  bv  '  colonizii^g,' 
or  brinicing  voters  into  the  precinct  immediately  on  the  eve 
of  election.'""  And  such  has  accordingly  been  its  con- 
struction, with  the  effect  of  excluding  students  temporarily 
sojourning  at  an  institution  of  learning,  from  the  right  to 
vote  in  the  election  district  in  which  they  may,  at  the  time, 
be  dwelling.'"  A  similar  technical  construction,  required  in 
connection  with  the  subject  matter,  was  placed  upon  the 
word  "  property  "  in  the  interpretation  of  a  constitutional 
provision  requiring  corporations  invested  with  the  right  of 
taking  private  property,  to  make  just  compensation  for  the 
same,  when  it  was  held  that  the  laying  of  a  pipe-line  under 
a  public  road  in  a  rural  district  though  a  person's  land  was 
such  a  taking  of  private  property  as  required  compensation 
to  the  owner  of  the  fee, — the  land,  upon  tlie  construction  of 
the  road,  having  been  subjected  only  to  a  servitude  as  to  the 
surface  occupied  by  the  road."*  Under  the  Fourteenth 
Amendment  of  the  federal  constitution,  forbidding  states  to 
deny  the  equal  protection  of  their  laws  to  any  "person," 
corporations  authorized  to  do  business  in  the  state  are  held 
to  be  included.""  A  sheriff  was  held  not  to  be  a  "  state 
officer,"  within  the  meaning  of  a  constitutional  provision 
conferring  on  the  Supreme  Court  jurisdiction  of  appeals  and 
writs  of  error,  where  a  state  officer  was  a  party."' 

103  Pry's  Elect'n,  71  Pa.  St.  303,  '"*  Sterling's  App. ,  111   Pa.  St. 

306.  35.        As   to    siuli    appropriation 

'»•■'  Ibid.  ;   Vandorpoel  v.  O'llan-  under  a  street  in  a  city,  see   Ibid., 

Ion,    53     Iowa.    246.        But      see  p.    41  ;    Bloomfield,    etc.,    Co.    v.. 

conti'a,  where  the  student  is  eman-  Call-cins,  62  N.  Y.  386. 
rip.ited    from  his   father's   family  '•'^  Santa  Clara  Co.  v.  R.  R.  Co... 

and    hiis,    at   the   time,    no    other  118  U.    S.  394:  Singer  Manuf'g Co. 

domicile  :   Putnam  v.  .Jolmson,  10  v.  Wright,  33  Fed.   Rep.  121  ;   but 

Mass.  488;  the  requirement  of  resi-  this   provision    does   not   forbid   a 

dence   being    sometimes     held    in  proper  classiticatiou  of  corporations 

mean  simply  an  absence  of  present  for    purposes    of    state    taxation  : 

intention  to  chani^e:  Dale  v.  Irwin,  Ibid. 

78  111.  170;  Lincoln  v.  Ilapgood,  11  i««  State  v.  Dillon,  90  i^Io.  229  ; 

Id.  3.50;  Wilbraham  V.  Ludlow,  99  State    v.    Spencer,    91      Id.    206. 

1(1.    587.     Comp.    Coolev,    C.    L..  Comp.  ante,  i?  508. 
754-756. 


§  620]  CONSTITUTIONS.  731 

§  520.  Presumption  against  Unnecessary  Change  of  Law. — [As, 
in  statutes,  the  presumption  against  an  intention  to  change 
tlie  existing  law  beyond  tlie  specific;  purpose  of  the  enactment 
may  create  numerous  apparent  exceptions  from  the  general 
language  employed,"^  so,  in  the  construction  of  a  constitu- 
tional provision,  a  due  regard  for  the  existing,  whether 
statutory  or  common,  law  may  produce  a  similar  result.  A 
new  constitution,  indeed,  which  does  not  change  the  frame 
of  government,  is  to  be  regarded,  not  as  a  repeal,  but  as  an 
amendment  of  the  prior  one.'"'  "It  may  be  called  a  new 
constitution,  in  the  sense  in  which  we  call  a  machine  new 
after  it  has  left  the  repair  shop.  Still  the  fact  remains  that 
the  constitution  is  but  the  prior  constitution  amended  ;"""'  for 
though  the  amendments  be  radical,  they  are  but  amendments 
where  a  large  body  of  the  prior  constitution  is  retained,  and 
the  frame  of  the  government,  i.  e.,  its  form  or  system,  remains 
substantially  the  same.""  In  such  case,  no  intention  to 
abrogate  previously  existing  laws  in  general  can  be  presumed, 
in  the  absence  of  expression  to  that  effect.*"  It  is,  therefore, 
a  sound  rule  of  constitutional  interpretation,  that  a  constitu- 
tion is  to  be  construed  with  reference  to  previous  legis- 
lation ;"*  and  the  bearing  of  this  rule  is  two-fold.  "  We  are 
not  to  presume  that  the  framers  of  the  constitution  intended 
uselessly  to  repeat  au  ordinary  and  well-established  rule  of 
law,"  says  the  Supreme  Court  of  Pennsylvania  in  a  recent 
case.'"  "On  the  other  hand,  had  it  been  intended  to  limit 
their  [corporations]  power  to  contract  .  .  or  to  give  a 
construction  to  their  contracts  theretofore  unknown  to  the 
law,  doubtless  it  would  have  been  so  written."  In  other 
words,  a  reference  to  the  existing  law  ma}'  show  the  meaning 
of  a  constitutional  provision  in  one  of  two  ways;  either  b}' 
pointing  to  something  different  from  that  which  is  already 
covered  by  an  established  rule,  upon  the  principle  that  a 
constitutional  provision  would  not  be  limited  to  a  dcclara- 

'"  Ante,  §§  11.3  et  seq.  o7G  ;  and   see  Daily  v.  Swope,  47 
•08  Alleirhenv  Co.   v.  Gibson,  90      Miss.  367;  Brown's  App.,  Ill  Pa.. 

Pa.  St.  897,  405,  407.  St.  72,  80. 

""  Ibid.,  p.  406.  "^  Ednmndson  v.  R.  R.  Co..  Ill 

'•0  Ibid.  Pa.    St.   31G,  321,  per   Gordon,  J.. 

'"  Il)id.  See  tiiis  case,  ante.  §  518. 

•'■^  Baltimore  v.    State,  15    Md. 


732  CONSTITUTIONS.  [§  520 

tion  of  a  legal  principle  existing  and  recognized  outside  and 
independently  of  constitutional  sanction  ;  or  by  indicating 
the  limits  of  the  intended  operation  of  the  provision,  upon 
the  principle,  that,  in  the  absence  of  expressions  showing  a 
design  to  depart  from  the  previously'  established  law,  an 
intention  so  to  do  will  not  be  unnecessarily  presumed,  wheie 
the  provision  under  construction  may,  without  such  result, 
accomplish  its  manifest  purpose  and  immediate  object  :  and 
to  the  latter  rule  is  to  be  added  its  corollary,  that  an  alteration 
clearly  made  by  the  constitution  in  the  jM'evious  law  will  not 
be  extended  by  construction  beyond  its  terms."*  Applying 
the  tirst  of  these  principles,  it  was  held  that  the  provision 
requiring  railroad  and  other  corporations  taking  property 
under  the  right  of  eminent  domain  to  make  or  secure  in 
advance  just  compensation  for  property  taken,  injured  or 
destroyed,  did  not  include  injuries  resulting  from  carelessness 
or  negligence  on  the  part  of  their  emploj'ees  ;  for  for  such 
injuries  the  law  already  held  them  liable.  Applying  the 
second  to  the  same  provision,  it  was  held  that  a  rail- 
road company,  to  which  one  grants  the  right  to  enter  upon 
bis  land  to  construct  a  road,  is  not  liable  to  him  for  damages 
resulting  as  a  consequence  of  the  company's  entering  and 
constructing  the  road  ;  for  the  immediate  object  and  purpose 
of  the  provision  was  to  impose  the  duty  of  compensation 
upon  corporations  having  the  right  of  eminent  domain, 
and  beyond  this  change  in  the  law,  it  was  not  to  be 
presumed  that  any  further  alteration  of  it  was  intended, 
such  as  would  have  limited  the  right  of  such  corporations  to 
contract  for  the  building  of  their  works,  or  changed  the 
legal  effect  of  their  contracts  ;  i.  e.,  the  application  of  the 
provision  was  confined  to  such  injuries  as  arose  from  the 
exercise  of  the  right  of  eminent  domain."^  Thus,  again,  a 
constitutional  provision  giving  to  the  auditor's  of  counties 
"  the  exclusive  power  to  prescribe  and  fix  the  compensation 
for  all  services  rendered  for,  and  to  adjust  all  claims  against," 
the  same,  without  appeal,  was  not  construed  as  changing  the 
well-settled  rule  of  our  law  that  a  man  is  not  to  be  a  iiidge 


'"   Costigin   V.    Boml,    C5    Md.  "^   Edmundson  v.    R.    R.    Co., 

122.  supra. 


§  520]  IMTERATIVE — DIEECTORT.  733' 

ill  liis  own  case/'*  but  was  held  never  intended  to  confer  upon 
a  board  of  auditors  the  exchisive  power  to  fix  the  compen- 
sation for  the  services  of  its  own  members,  and  adjust  and; 
allow  their  own  claims;  so  that  a  statute  fixing  their 
conipeiisation  was  not  a  violation  of  the  provision  referred 
to.'"  So,  a  provision  that  one  accused  of  a  crime  shall  have 
the  right  to  be  confronted  with  the  witnesses  against  him,, 
does  not  change  the  rule  of  evidence  permitting  proof  by 
record  ;  so  that,  on  a  trial  for  bigamy,  certified  transcripts 
of  marriage  records  remain  receivable  as  evidence  of  the 
marriages  and  the  dates  thereof.""  A  requirement  that  all 
elections  by  the  people  shall  be  by  ballot,  was  held  to  impose 
no  restriction  upon  the  legislative  power  to  provide  for  the 
ascertainment  of  the  will  of  persons  desiring  a  territory  pro- 
posed to  be  annexed  to  a  contiguous  municipal  corporation,, 
in  some  other  way  than  by  public  election.'"  A  provision 
that  every  railroad  company  shall  have  the  right  with  its 
road  to  intersect,  connect  with,  or  cross,  any  other  railroad, 
does  not  change  the  existing  policy  and  law  of  the  state  as  to^ 
the  prevention  of  railroad  crossings  at  grade,  when  that  is 
reasonably  practicable.'"  A  provision  securing  to  a  married 
woman  her  property  as  if  she  were  a  feme  sole  was  held  not 
to  change  the  common  law  effect  of  a  conveyance  to  husband 
and  wife.'"  Nor  does  a  declaration  in  the  bill  of  rights 
that,  in  all  criminal  prosecutions,  the  accused  has  the  right 
to  demand  the  "  nature  and  cause  "  of  the  accusation,  abrogate 
a  statutory  rule  making  it  sufficient  to  charge  a  crime  sub- 
stantially in  the  language  of  the  act  prohibiting  and  punishing 
it, — e.  </.,  to  charge  the  crime  of  murder  by  an  allegation 
that  defendant  "did  feloniously,  willfully  and  of  his  malice 
aforethought,  kill  and  murder  the  deceased," — without 
specifying  the  mode  and  manner  of  its  commission, — e.  g., 
the  instrument  or  other    agency  by  means    of    which    the 

"«  See  Cooley,  C.  L.,  507-509.  '■"  North.  Centr.  Ky.  Co.'s  App... 

1"   Kennedy  v.    Gies,   25  Mich.  103  Pa.  St.  G'21. 

83  '■-'   Robinson   v.   Eagle,  29  Ark 

"8   State   V.    Matlock,   70  Iowa,  20'3.     And  so,  it  seems,  in  Oregon:; 

229.  Myers  v.  Reed,  17  Fed.  Rep.  401. 

"9  Graham  v.  Greenville,  67  Tex.  And  see  Fisher  v.  Trovin.  25  Mich.. 

62  347  ;  Jaco'js  v.  Miller,  50  Id.  119,. 


734 


CONSTITUTIONS. 


[§521 


murdec-  was  perpetrated.'"  Ai^aiu,  it  was  held  that  taxable 
"property,"  within  the  incanhig  of  a  constitutional  pro- 
vision, included  offices,  posts  of  profit,  occupations  and  trades 
because  previous  legislation  had  recognized  such  as  proper 
subjects  of  taxation,  and  tliere  was  notliing  in  the  constitu- 
tion "indicating  an  intention  to  prohibit  the  imposition  of 
taxes  on  any  species  of  property  previously  subjected  there- 
to.'"" 

§  521.  Presumption  against  Evasion.— [A  constitutional  pro- 
vision, as  well  as  a  statutory  one,  is  to  receive  such  a  con- 
struction as  will  frustrate  attempts  to  evade  its  legitimate 
operation.'"*  A  provision  that  no  statute  shall  take  effect  until 
published,  except  in  cases  of  emergency,  to  be  declared  in 
the  preamble  or  body  of  the  enactment  itself,  cannot  be 
evaded  by  means  of  a  sul)sequent  act  undertaking  to  put  into 
operation,  before  publication,  a  statute  containing  no  such 
emergency  clause.*"  A  constitutional  j)rohibition  of  laws 
increasing  or  diminishing  the  salaries  of  public  ofncers  during 
their  terms  of  office,  forbids  the  alteration  of  tlie  law  so  as  to 
make  the  amount  of  the  compensation  rest  in  the  discretion 
of  a  majority  of  the  judges  of  acourt;''"  and  a  provision 


'"  Gocrseu  v.  Cotn'th,  99  Pa.  St. 
388. 

123  Brown's  App.,  Ill  Pa.  St. 
73,  80.  As  to  the  infiuenct;  of  the 
common  law,  although  a  rule 
analogous  to  that  formerly  de- 
clared wilh  reference  to  statutes  : 
ante,  §§  137,  128,  has  been  sought 
to  be  applied  to  constitutional  pro- 
visions "in  derogation  of  tlie  com- 
mon law  :"  see  Brown  v.  Fifield,  4 
Mich.  323,  the  better  opinion  is 
that  that  rule  is  of  even  less 
legitimate  force  in  its  application 
to  constitutional  provisions  than  in 
the  construclion  of  statutes  :  see 
Cooley,  C.  L.,  73,74;  so  that, 
whilst  a  "  constitution  shall  be 
understood  and  construed  in  the 
light  and  by  the  assistance  of  the 
common  law,  and  with  the  fact  in 
view  that  its  rules  are  still  left  in 
force:"  Ibid.,  73,  it  is  not  "  to  con- 
trol the  constitution,"  nor  is  "the 
latter  to  be  warped  and  perverted 
in  its  meaning  in  order  that  no 
inroads,  or  as  few  as  possible,  may 
be  made  in  the  system  oi"  common 


law  rules  :"  Ibid.  But,  in  the 
absence  of  a  specification,  in  the 
constitution,  of  the  menns  of  carrj'- 
ing  a  power  into  elfect,  such  will 
not  1)0  presumed  to  be  intended  as 
would  interfere  with  recognized 
common  law  rights  and  relations, 
e.  g.,  tlie  antiiority  of  parents  over 
minor  children:  Com'thv.  Downes, 
24  Pick.  (Mass.)  337. 

'2^  "  Attempts  in  covert  modes  to 
defeat  its  plain  provisions  must  be 
set  aside  with  the  same  certainty 
as  when  the  methods  are  (jpen": 
per  Green,  J.,  in  Scranton  Sch. 
Distr.  App.,  113  Pa.  St.  176, 
190-1. 

i«  Cain  V.  Goda,  84  Ind.  209. 
But  see  State  v.  Yard,  43  N.  J.  L. 
357,  and  State  v.  Hyno,  (N.  J  )  9 
Centr.  Rep.  36,  that  a  constitu- 
tional objection  to  an  act  may  be 
cured  by  sid)sequent  enactment 
in  the  form  of  an  amendment  or 
supplement.     See  Addenda. 

'•^'^  Apple  V.  Crawford  Co.,  105 
Pa.  St.  300. 


521] 


CONSTITUTIONS. 


735 


inhibiting  municipal  corporations  from  loaning  tlieir  credit, 
renders  unlawful,  as  a  mere  attempt  at  evasion,  the  purchase 
by  a  municipal  corporation  of  a  judgment  held  by  a  third 
party  against  its  creditor,  the  object  of  the  transaction  being 
to  enable  such  third  party  to  collect  his  claim  against  his 
debtor  through  the  corporation's  right  to  set  it  off  against  the 
latter's  claim  upon  it.*"  A  prohibition  of  special  legislation 
relating  to  the  affairs  of  counties,  is  violated  by  an  act 
excluding  perpetually  from  its  operation  counties  containing 
more  than  a  designated  and  less  than  another  designated 
number  of  inhabitants.*" 


121  Earley'3  App.,  103  P;i.  St. 
273. 

'-«  Morrison  v.  Bacbeit,  113  Pa. 
St.  822.  Such  exclusion  deprives 
the  act  of  the  character  of  a  legiti- 
mate act  for  classification  :  Ibid.  ; 
as  to  the  general  admissibility  of 
■which,  under  a  restraint  upon 
special  legislation,  see  New  York 
V.  Squire,  (X.  Y.)  10  Centr.  Rep. 
437  ;  Roup's  Case,  81  Pa.  St.  (3-3  S.) 
911  ;  State  v.  Hudson,  4-1  Ohio  St. 
137;  Cooley.  C.  L.,  153,  note  4. 
The  case  of  New  York  v.  JSquire, 
supra,  goes  a  step  furtiier,  and 
declares  an  act  relating  to  telegraph, 
etc.,  companies,  "  in  any  incorpo- 
rated city  in  this  state,  having  u 
population  of  500,000  or  ovei-." 
xmobjectiouable  on  I  he  score  of  pri- 
vate or  local  legislation.  "This 
act,"  it  is  sail!  at  p.  440,  "  is  general, 
in  its  terras  ai)plying  to  all  cities  in 
the  state  of  a  certain  class,  and  to 
every  corporation  cari-ying  on  a 
business  requiring  the  use  of  elec- 
trical wires  or  conductors  in  such 
cities."  Compare  ihe  decision  of  the 
Supreme  Ct.  of  Pa.,  in  Weinman  v. 
Pass.  Ry.  Co.,  11  Cenlr.  Rep.  54, 
where  an  act  for  the  incorporation, 
etc.,  of  street  railway  companies  in 
cities  of  the  second  and  third 
classes,  was  held  imconsiitutional 
as  being  spoi'ial  legislation.  "It 
selects,"  says  the  court,  at  p.  58, 
"  such  companies  as  may  be  located 
in  cities  of  the  second  and  third 
class  and  makes  special  provisions 
for  them,  while  all  the  [other] 
street  railway  companies  remain 
under  the  operation  of  the  general 


law.  This  is  just  what  the  Con- 
stitution declares  shall  not  be 
done.  In  Morrison  v.  Bachert, 
supra,  the  phrase  "affairs" 
was  held  to  be  designedly  a 
broad  one,  and  not  to  be  restricted 
in  its  meaning  so  as  to  exclude 
the  case  of  a  statute  regulating 
tiie  fees  of  a  county  officer. 
See  Eitel  v.  State.  33  Ind.  201, 
where  a  prohibition  of  local  legis- 
lation, "regulating  county  and 
township  bustn^aa,"  was  held  not 
to  allect  an  act  erecting  a  criminal 
court  for  a  particular  county. 
Compare,  under  the  provision  re- 
ferred to,  as  to  "affairs"  of  coun- 
ties, etc.,  the  decisions  of  the 
Supreme  Court  of  Pennsylvania, 
declaring  unconslitutionaf,  .is  an 
a  I  templed  evasion,  the  acts  of 
18  Apr.  1878,  and  12  June,  1879, 
providing  for  the  holding  of  courts 
in  certain  cities  of  the  common- 
Avealth,  the  cities,  in  the  former 
act,  beingclassified geographically, 
in  the  latter  according  to  the  pop- 
ulation of  the  counties  in  wiiich 
they  might  be  locat(;d  :  Com'th  v. 
Ration,  88  Pa.  St.  258;  Scowden's 
App.,  96  Id.  422.  As  to  evasions 
of  constitutional  provisions  for- 
bidding the  introduction  of  bills  in 
the  Legislature  beyond  a  certain 
time,  by  introducing,  in  due  sea- 
son, a  sham  bill,  and  after  the 
expiration  of  the  peiiod  allowed 
for  presenting  new  bills,  amending 
it  so  as  to  protluce  an  entirely  new 
enactment,  see  Cooley,  C.  L.,  107, 
note  3. 


73G  CONSTITUTIONS.  [§§  522,  523 

§  522.  Presumption  against  Ousting  Jurisdiction. — [There  can- 
not, of  course,  in  the  construction  of  a  constitution,  be  any 
presumption  against  an  intention  to  bind  the  government."' 
But,  there  is,  even  in  the  consideration  of  the  effect  of  con- 
stitutional provisions,  a  presumption  ngainst  the  existence 
of  a  design  to  oust  tlie  estal)lished  jurisdiction  of  the 
Supreme  Court,  original  or  appellate,  and  such  an 
effect  will  not  be  given  to  language  which  does  not 
expressly  or  by  necessaiy  implication  require  it.  Thus  a 
constitutional  provision  declaring  that  the  Supreme  Court  of 
the  state  should  have  original  jurisdiction  in  certain  cases  of 
injunction,  of  habeas  corpus,  of  mandamus  to  courts  of 
inferior  jurisdiction,  and  of  quo  warranto  as  to  ail  ofhcers  of 
the  state,  etc.,  but  sliould  not  exercise  any  other  original 
jurisdiction,  retaining,  however,  its  appellate  jurisdiction  by 
appeal,  certiorari,  or  writ  of  error,  was  held  not  to  oust  the 
jurisdiction  conferred  upon  it  by  former  legislation  to  issue 
writs  of  certiorari  to  courts  of  Quarter  Sessions  of  the  various 
counties  to  remove  pending  indictments  and  all  proceedings 
thereon  into  the  Supreme  Court,  and  to  send  a  case  so 
I'emoved  into  that  court,  down  to  another  county  for  trial,  if 
necessary,  before  an}'-  of  the  judges  of  the  Supreme  Court, 
each  judge  of  that  court  retaining  the  power  to  sit  and  try 
indictments  in  any  county  of  the  state.''" 

§  523.  Presumption  against  Interference  with  Federal  Constitu- 
tion.— [As  the  constitution  of  a  state  or  nation  is  the  creature 
of  the  will  of  its  people,  expressing  the  fundamental  princi- 
ples that  are  to  underlie  and  control  its  own  government  and 
affairs,  there  cannot,  on  the  one  hand,  arise  many  questions  of 
extra-territorial  operation,"'  nor,  on  the  other  liand,  could 

129  "The  constitution,  being  the  n.  91. 

act  of  the  people,  and  the  compact  '"'^  Cora'th  v.  Balph,  111  Pa.  St. 

according    to    which    they    have  365,  Tninlcey,  J.,  tiling  a  disseut- 

agrced   with  each   otlier   that  the  ing  opinion,  in  wiiicli  Gordon  and 

government     which     they      have  Clarlv,  JJ.,  concurred.     For  recog- 

established  shall  be  administered,  nition  of  the  right  of  the  Supreme 

is    a    law    to    the    government  :"  Court,    after   ihe   al)Ove   provision 

Emerick  v.  Harris,  1  Binn.   (Pa.)  came  into  effect,    to  issue  a  ccr- 

410,    419.     "The    constitution    is  tiorari  to  a  justice  of  tlie  peace, 

tlie  l;i\v  paramount  which  bmds  all  see  Bauer  v.  Angenj%  100  Pa.  St. 

departments    of   tlie   government  :  429.     See  ante,  §  151. 

Stewart  v.  Com'th,  (Pa.)  10  Centr.  '^'  Tiie  ])iovisions  of  the  Penn- 

Rep.  83,  84.     And  see  ante,  g  518,  sylvania  Const  of  1874,  disqualify- 


§  524r]  CONSTITUTIONS.  737 

there  he,  within  the  territorial  limits  of  any  particular  state, 
any  question  of  excess  of  power,  were  it  not  for  the  effect 
of  the  federal  constitution  as  the  supreme  law  of  every  state, 
to  which,  within  the  scope  of  its  provisions  and  operation,, 
not  only  the  statutes,  but  equally  the  constitution,  of  the 
state  must  be  subordinate."'  It  follows,  that,  just  as  statutes 
must  be  construed  with  reference  to  constitutional  provisions 
in  pari  materia,  so  the  provisions  of  state  constitutions  must 
be  construed  with  reference  to  provisions,  upon  the  same 
subject,  of  the  federal  constitution,  national  treaties,  and 
congressional  enactments,  and  must,  if  possible,  be  so  inter- 
preted as  not  to  conflict  with  the  same.'"  Thus,  for  example, 
a  provision  of  a  state  constitution  declaring  inorigages  to  be 
an  interest  in  land,  for  purposes  of  taxation,  was  construed  to 
have  a  prospective  operation  onl}^  in  order  not  to  conflict 
with  the  provision  of  United  States  constitution  against  the 
impairing  of  contracts.'" 

§  524:.  Presumption  against  Injustice,  Absurdity,  etc. — [Even  less 
than  in  the  case  of  a  statute,  can  courts  be  permitted,  in  the 
construction  of  a  constitution,  to  vai-y  or  annul  a  plain  pi'o- 
vision  on  the  ground  that  it  works  injustice,  hardship  or  in- 
convenience."* Limited  as  is  tlie  judicial  discretion  in  the 
treatment  of  legislative  enactments,"®  it  is  still  more  restricted 
when  dealing  with  the  fundamental  law  of  the  state.'"  As 
a  general  rule,  it  may  be  asserted,  that,  in  interpreting  a  re- 
strictive or  permissive  provision  of  the  constitution,  whose 
language,  understood  in  its  ordinary  and  obvious  sense,  pre- 

ing  from    holding  auy  office    of  II.    Treaties  ;    III.    Acts   of   Con- 

botior  of  profit   any   person    who  gress;    IV.    The   Constitutions   of 

tight  a  duel,  etc.,  is  said  by  Mr.  the  several  States;  V.  State  Stat- 

Buckalevv,   C"nst.   of  Pa.,  p.  233,  utes  ;    VI.  By-laws   of   Municipal 

clearly  to  contemplate  "  an  extra-  Corporations."      See,    also,    Flint 

territorial     commission      of      the  River,  etc.,  Co.  v.   Foster,   ~)   Ga. 

offence"  of  dueliimj:,  etc.,  as  well  194,  204,  there  referred  to. 
as   the   offence   committed  within  '^^  And  the  decisions  of  the  fed- 

the  state.      Nor  does  the  disqnali-  eral  courts   are   controlling  as   to 

fication  depend  upon  a  conviction,  the   interpretation   of   the    federal 

nor  can  it  be  removed  by  executive  constitution,  etc.:  Bish.,    Wr.   L., 

pardon:     Ibid.;     and     the    word  §  35b;  Coo]e}^  C.  L.,  lo. 
"ofllce"   includes  membership  in  '^  Beckman   v.  Skaggs,  59  Cal. 

the  Legislature  :  Ibid.  541.     See  sui)ra,  note  13. 

•3'^  See  Bish.,  Wr.  L.,  §§  11,  13,  '^^  g^f.  Oooley,  C.  !>.,  Hi. 

giving,  in  §  11,  the  order  of  pre-         '^^  Ante,  §§  203,  260. 
cedence    as    follows :      "I.     Tlie         '^■'  Greeneastle  Tp.  v.  Black.  5 

constitution  of  the  United  States;  Ind.  507. 

47 


738  CONSTITUTIONS.  [§  524 

sctitri  :i  detiiiite  and  intelligible  ineaiiing,  the  courts  Lave 
nothing  to  do  with  any  argument  drawn  from  the  conse- 
quences likely  to  ensue  the  acceptation  of  such  meaning, 
with  a  view  to  bending  the  constitution  to  the  one  side  or 
to  the  other.'"  Nor,  on  the  other  hand,  in  determining 
v/hether  a  certain  power  falls  within  the  limits  of  the  consti- 
tutional grant,  whether  an  act  of  the  Legislature  is  constitu- 
tional or  not,  can  the  courts  look  beyond  the  instrument  for 
the  grounds  of  their  decision,  of  which  the  general  princi- 
ples of  justice,  liberty,  right  or  political  wisdom,  not  contained 
or  expressed  in  tiie  constitution,  can  be  no  proper  elements.*" 
It  is  for  this  reason  that  it  has  become  a  maxim  of  the  law 
that  a  statute  cannot  be  declared  unconstitutional  unless  it  is 
plainly  shown  to  oft'end  against  some  specific  provision,  or 
necessariljMinplied""  prohibition,  and  that  to  doubt  is  to  sus- 
tain the  act.'"  "  We  do  not  say,  however,  that,  it*  a  clause 
should  be  found  in  a  constitution  which  should  appear  at 
first  blush  to  demand  a  construction  leading  to  monstrous 
and  absurd  consequences,  it  might  not  be  the  duty  of  the 
court  to  question  and  cross  question  such  clause  closely,  with 
a  view  to  discover  in  it,  if  possible,  some  other  meaning  more 
consistent  with  the  general  purposes  and  aims  of  these  in- 
struments.'"" Indeed,  it  has  been  intimated  that  the 
received  sense  and  literal  meaning  of  words,  where  that 
sense  and  meaning  involve  absurdit_y,  contradiction,  injustice 
or  extreme  hardship,  may,  with  great  caution,  be  slightly 
i)ent  to  a  sense  in  harmony  with  the  intention  of  the  fram- 
ers  ;"^  and,  as  has  been  seen,  the  injun(;tion  of  literal  inter- 
pretation is  usually  coupled  with  the  condition  that  it  lead 
to  no  absurdity.'"  Whatever  may  be  the  true  limits  of  this 
rule,  it  cannot  be  doubted  that  it  has,  in  some  cases,  been 
acted   upon,  and  the  unreasonal)leness  of  an  interpretation, 

'^*  Ibid.;  Oakley  V.  Aspinwall,  3  '•"    Shiirplcss    v.    Philadclpliiji, 

N.    Y.   547;  Weill   v.   Keiificld,  5-t  supra  ;  Cooley,  C.  L.,  88,  192-223. 

Cal.  Ill;  Wavnc  Co.  v.  Detroit,  17  '••■-  Id.  87-88. 

Mich.   300;  Story,   Const.,   §  43G;  •«  Taylor   v.   Taylor,   10    ■\Iinn. 

Ooolov,  C.  L.,  87.  107,  Avliorc.  to  avoid  siicli  rcsidts, 

'■"  Sharpless  v.  Philadelphia,  21  a  majority  of  tho.se  actually  voting 

Pa.    Si.    M7;   Scowden's  App.,  96  was  lield   \o  be  a  majority  of  the 

Id.  422.  42o.  electors  required  by  tlie  conslilu- 

'«  See  Cooley,  C.  L..  208;  Page  tion. 

V.   Allen,  58   Pu.  St.  338,  345,  346.  '•'»  See  ante,  §§  507,  509. 


§  524]  CONSTITUTIONS.  739 

if  not  the  sole  ground,  lias  at  least  been  made  one  of  the 
grounds  of  its  rejection.  Under  a  provision  forbidding  the 
enactment  thereafter  of  auj  law  creating,  renewing  or  ex- 
tending the  charter  or  privileges  of  more  than  one  corpora- 
tion, it  was  said  that  a  literal  construction  contended  for, 
would  have  the  effect  of  prohibiting  the  passage  of  any  law, 
e.  g.,  permitting  two  railroads  to  connect  their  works,  or 
two  counties  to  make  a  contract  between  them,  or  giving 
new  powers  to  a  whole  class  of  corporations ;  and  the  court 
added  :  "  We  must  keep  clear  of  these  absurdities,  if  we  can 
do  so,  without  allowing  the  constitutional  injunction  to  be 
disregarded."'""  A  provision  of  a  constitution  declared  that 
the  debt  of  no  municipality  should  ever  exceed  seven  per 
cent,  of  the  assessed  value  of  the  taxable  property  therein, 
nor  sliould  any  municipalit}'  incur  any  new  debt  or  increase 
its  indebtedness  to  an  amount  exceeding  two  per  cent,  of 
such  assessed  value,  without  the  assent  of  the  electors  thereof 
at  a  public  election.  It  was  held  that  the  proper  construc- 
tion of  the  provision  must  be  to  forbid,  except  when 
sanctioned  by  such  an  election,  the  increase  of  indebtedness 
to  an  amount,  which,  added  to  the  existing  indebtedness, 
would  exceed  two  per  cent.  "  The  argument  that  ignores 
the  aggregate  indebtedness  and  considers  the  addition  only, 
proves  too  much.  It  would  nullify  the  right  of  electors  to 
vote  on  the  question  of  increase  altogether.  By  successive 
steps,  each  less  than  two  per  cent.,  the  city  might  have  the 
aggregate  indebtedness  reach  seven  jDcr  cent,  without  a  vote 
of  the  electors.  Up  to  that  per  centum  the  city  would  deny 
the  right  of  the  electors  to  vote  on  the  question  of  increase, 
and  beyond  that  per  centum  the  Constitution  itself  prohibits 
any  increase." "°  A  provision  securing  to  one  accused  of  a 
crime  the  right  of  a  public  trial,  does  not,  upon  the  same 
ground  of  absurdity,  abridge  the  power  of  the  trial  court  to 
expel  a  boisterous  and  insubordinate  audience,  and  protect  an 

"^  Moers  v.  Reading,  21  Pa.  St.  in  tlie  case,  left  the  exact  force  of 

188,    201,   per  Blacls;,    C.   J.     The  it  undecided.     See  a^ite.  §  518. 
piovision   was  held,   in  this   case,  ^-^  Wilkes-Bane's  App',  109  Pa. 

not  to  apply  to  political  corpora-  St.   554,  559;  and  see   ^lilleistowa 

lions,  which,  being  the  ouly  poitit  v.  Frederick,  114  Id.  435. 


740  CONSTITUTIONS.  [§  525 

intimidated  and  embarrassed  witness.'"     A  provision,  reqnir- 
iiii;  the  awarding  of  contracts  to  the  lowest  bidder,  on  ade- 
quate security,  was  construed"'  as  giving  a  discretion  to  the 
(-tlicers  charged  with  the  duty  of  acting  under  it,  to  determine 
wlio  was  the  lowest  bidder  and  what  was  adequate  security, 
ill  a  manner   similar  to  the  construction  put  upon  analogous 
statutory  requirements.'"     The  provisions  contained  in  many 
state  constitutions  confining  the  legislation  embodied  in  any 
one  statute  to  a  single  subject,  to  be  expressed  in  its  title, — 
provisions  directed  against  the  practice  of  log-rolling  legisla- 
tion and  smuggling  bills,  are,  upon  similar  principles,  given 
a!i  effect  not  calculated  to  embarrass  the  Legislature  by  mak- 
ing laws  unnecessarily  restrictive  in  their  scope  and  operation^ 
and   thus  multiplying  their  number.""     "  The  general  pur- 
pose of  these  provisions  is  accomplished  where  a  law  has  but 
one  general  object,  which  is  fairly  indicated  by  its  title.'"" 
It  "  would    not    only  be   unreasonable,  but    would    actually 
render  legislation  impossible,"    to  give   them  a  strict  literal 
interpretation  which  would   "  require  every  end  and  means 
necessary   or  convenient    for    the    accomplishment    of   this 
general  object,  to  be  provided  for  by  a  separate  act  relating 
to  that  alone.'"" 

§  525.  Presumption  against  Retrospective  Operation.— [The 
iicnius  of  our  law  is  opposed  to  retrospective  legislation,  and 
the  same  presumption  that  militates  against  a  construction 
th;it  would  give  such  effect  to  a  statute,  requires,  as  a  general 
rule,  antl  in  the  absence  of  a  clear  expression  or  necessary 
implication  of  a  design  to  the  contrary,  that  constitutional 
provisions  be  regarded  as  intended  to  have  a  prospective 
operation.'"     Such  a  construction  is,  of  course,  imperative  in 

'■»'  Grimmett    v.    State,   23  Tex.  and   of   similar  requirements  con- 

App.  36.  cerniug      amendments      to      acts 

'•'8  People  V.  Fay,  3  Lan.s.  (N.  Y.)  impliedly     amending    others    by 

39g_  transferring  duties,  Ibid.,  note;  as 

'''9  Ante,  §  249.  to  the  interpretatiou  of   tlie  word 

'50  Atty.'-Oen.      v.     Weimer,    59  "necessary"     iu     a     constitution 

Mich.  580.  under    similar    considerations     of 

'5'  Cooley    C.  L.,  173.  convenience,  etc.,  see  Balliuiore  v. 

'"  Ibid.     See  as  to  this  subject  State,  15  Md.  376,  473.     See,  also, 

in  detail.  Id.,  170-183.     As  to  the  supra,  notes  24,  26. 
inapplicability  of  the  constitutional  '"Cooley,  C.  L.  76;  Bish.,  Wr. 

requirements    concerning    repeals  L.,    ^    92a.     Comp.    Buckner    v. 

to  implied  repeals,  see  ante,  §191,  Street,  1  Dill.  248,  where  the  rule 


§  526]  CONSTITUTIONS. 


741 


a  state  constitution,  where  the  contrary  effect  would  antagon- 
ize some  provision  of  the  federal  constitution.'"  On  the 
other  hand,  as  in  statutes,  so  in  constitutions,  provisions 
affecting  the  remedy  merely  are  held  to  be  retroactive.'" 
Nor  is  that  an  objectionable  retroaction  which  simply  draws 
some  of  the  elements  for  its  operation  from  the  past.'"  So, 
a  provision  against  increasing  or  diminishing  the  powers  of 
•  corporations  by  special  laws,  applies  as  well  to  corporations 
in  existence  at  the  adoption  of  the  constitution,  as  to  those 
subsequently  created.'" 

§  520.  strict  Construction. —[A  constitution  is  "intended 
for  the  benefit  of  the  people,  and  must  receive  a  liberal 
construction.'"^*  "  The  principle  of  strict  construction  would 
frustrate  important  provisions  in  every  newly  constructed 
frame  of  government,""'  Sucli  is  the  general  rule,  the  key- 
note, as  it  were,  of  all  interpretation  of  constitutional  provis- 
ions, and  is  in  harmony  with  the  principles  already  discussed, 
No  exception  to  it  can  be  tolerated  on  the  ground  that  the 
provision  under  discussion  contravenes  the  common  law."' 
But  a  distinction  must  be  drawn,  concei-ning  the  strictness 
and  liberality  of  construction,  between  state  constitutions  and 
the  federal  constitution,  the  former  only  being  entitled  to  a 
liberal,  the  latter  subjected  to  a  strict,  construction  in  respect 
of  the  powers  recognized  in  the  government  by  the  one,  and 
delegated  to  it   by  the  other.'^'     And,  where  a  provision, 

ajjainst  retroaction,  so  as  to  divest  upon  corporations  previously  exist- 

vested  riiilits  of  property  was  held  ing,  of  a  provision,  in  a  new  con- 

iniipplicnble,      concerning     slaves  stitution,    subjecting   corporations 

and   slave-contracts,  to   the   inter-  invested  with  the  right  of  eminent 

pretation  of  tiie  thirteenth  Amend-  domain,  to  liability  for  consequen- 

ment   of   the   U.    S.    constitution.  tial   damages    resulting    from    its 

And  see  dictum  of  Denio,  J.,  in  exercise.     Comp.  Pa.  R.  R.  Co.  v. 

Oliver  Lee  &  Co's  B'k,  21  N.  Y.  9,  Lippincott,  116  Pa.  St.  472.  . 

12.  as  to  the  inapplicability  of  the  ^^^  Morrison  v.  Bachert,  112  Pa. 

principle   to   the   construction    of  St.  322,  329. 

constitutional  provisions  in   gene-  ^^^  Com'th  v.   Clark,  7  "Watts  & 

ral.     Comp.  also,  post,  §  540.  S.  (Pa.)  127,  132.     For  instances  of 

'54  BecUman  v.  Skaggs,  59  Cal.  what  may,  in  a  sense,  be  termed 

541,  ante,  §523.              "  strict  construction,  see  supra, notes, 

1"  See  Cnsic  v.  Douglas,  8  Kan.  9.  24,  20,  33.  64,  §  518  and  notes, 

123,  post,  §  526.  §§  520  and  522  and  notes. 

156  See  ante,  §  280.  i^"  Ante,  §  520,  note. 

I"  State    v.     Wilson,     12    Lea  i"  Weister  v.  Hade,  52  Pa.  St. 

(Tenn.)  246.      And  see  to  similar  474,    and    cases   there    reviewed : 

effect,  Pa.  R.  R.  Co.  v.  Duncan.  Cooley,  Const.  L.,  10  ;  post,  §  535. 
'Ill  Pa.  St.  352,  as  to  the  operation 


742  CONSTITDTIONS.  [§  527 

general  in  its  language  and  objects,  is  followed  by  a  proviso, 
the  rule  applicable  to  such  cases  occuning  in  statutes'"  has 
been  applied  to  constitutions,  viz. ;  that  the  proviso  is  to  be 
strictl}^  construed,  as  taking  no  case  out  of  the  provision  that 
does  not  fairly  fall  within  the  terms  of  the  proviso,  the  latter 
being  understood  as  carving  out  of  the  provision  only  speci- 
fied exception,  within  the  words  as  well  as  within  the  reason 
of  the  former.'"  Thus,  where  a  provision  of  a  constitution 
declared  that  no  person  should  be  excluded  as  a  witness  in  a 
civil  suit,  because  of  being  a  party  to  it,  or  interested  in  the 
issue  to  be  tried,  but  added,  b}'  way  of  proviso,  that,  in  actions 
by  or  against  executors,  administrators,  or  guardians,  in  which 
judgment  might  be  rendered  for  or  against  them,  neither 
''  party"  should  be  allowed  to  testify  against  the  other,  as  to 
any  transaction  with,  or  statement  of,  the  testator,  intestate, 
or  ward,  unless  called  by  the  opposite  party,  it  was  held  that 
one  who  had  an  interest  in  the  issue  of  the  suit,  but  was  not 
•A. party  to  it,  was  not  within  the  proviso,  and  hence  compe- 
tent to  testify  under  the  general  clause.'"  So,  a  clause  in  a 
constitution  saving  and  continuing,  as  if  no  change  had  taken 
place,  all  "suits,  rights,  actions,  prosecutions,  recognizances, 
contracts,  judgments  and  claims,"  was  held  not  to  preclude 
a  change  of  remedy  in  any  of  these  matters.'"  And  a  similar 
strict  construction  was  placed  upon  a  constitutional  provision 
conferring  upon  certain  courts  the  power  to  relieve  persons, 
under  specitied  conditions  and  upon  proceedings  designated 
therein,  from  political  disabilities  declared  against  them  by 
a  previous  section  of  the  same  article.'*' 

§  527.  Usage,  Contemporaneous  and  Legislative  Construction. 
— [A  like  weight  as  is  attributed  by  the  courts  to  long  usage 
and  authoritative  contemporaneous  construction  in  the  inter- 
pretation of  statutes,  attends  the  same  in  the  interpretation 
of    constitutional    provisions.'"       A     practical    construction 

'**  Ante,  §  18G.  precofliiitc  case. 

'«3  McRae  v.  Holcomb,  46  Ark.  "^"  Cusic  v.  Douglas,  3  Kan.  123. 

306.  Comp.  iiiitc,  §  525. 

'"Ibid.     See  Potter  V.  Nat.  B'k,  '^fi  Stule   v.    Woodson,    41   Mo, 

102  U.  S.  163,  for  a  decisiou  to  tlie  22-. 

same  efTect    or     U.    S.    Rev.    St..  '"  Cooley.  C.  L..   81-85  :  Bish. 

§  858,  of  precisely  similar  tenor  as  Wr.  L.,  §  104  ;  Sedgw.,  552,  and 

tile    provision    referred   to   in    the  eases  cited  in  places  referred  to. 


§  527]  CONSTITUTIONS.  '  743 

placed  upon  a  constitutional  provision  by  the  judiciary  acting 
under  it,  e.  g.,  the  practice  of  the  judges  of  the  Supreme 
Court  of  the  United  States  to  sit  .is  circuit  judges,'""  running 
back  to  the  very  inception  of  tlu^  federal  judicial  system, 
was  held  to  be  a  '•contemporary  interpretation  of  the  most 
forcible  nature,"  and  conclusive  of  the  legality  of  the 
practice. '°'  Of  similar  weight  and  dignity  is  the  construction 
placed  by  the  political  departments  of  the  government  u])on 
constitutional  provisions  under  which  they  are  charged  witli 
acting.""  And  the  greatest  deference  is  shown  l)y  the  courts 
to  the  interpretation  put  upon  the  constitution  by  the  Legis- 
lature, in  the  enactment  of  laws  and  other  practical  applica- 
tion of  constitutional  provisions  to  the  legislative  business, 
when  that  interprekition  has  had  the  silent  acquiescence  of 
the  people,  including  the  legal  pi'ofession  and  the  judiciary, 
and  especially  when  injurious  results  would  follow  the  dis- 
turbing of  it.'"  The  deference  due  to  such  legislative 
exposition  is  said  to  be  all  the  more  signal  when  the  latter 
is  made  almost  contemporaneously  with  the  establishment 
of  the  constitution,  and  may  be  supposed  to  result  from  the 
same  views  of  policy  and  modes  of  reasoning  that  prevailed 
among  the  fraraers  of  the  instrument  thus  expounded."'  An 
early  assumption  and  continued  exercise  by  the  Legislature 
of  the  power  to  grant  divorces  was  thus  held  to  establish  the 
existence  of  the  power  under  the  constitution  then  in  force  ;"* 
the  frequent  passage  of  laws  of  a  certain  description,  as 
conclusive  that  they  did  not  fall  within  the  prohibition  of  a 
particular  clause  in  the  constitution  ;"*  an  unbroken  practice 
of  passing  statutes  entitled  merely  as  "supplements"  to 
certain  other  acts,  and  giving  no  further  intimation  of  their 
contents,  as  settling  the  sufficiency  of  such  description  under 
a  provision    requiring  the  subject  matter  of  an   act  to  be 

"8  Stuart  V.    Laird,    1   Craucli.  State,  15  Md.  376  ;  Cooley,  C.  L.. 

299.  ubi  supra. 

169  Ibid.  1^'^  People  v.  Writrbt,  6  Col.  93, 

""  People   V.    La  Salle,  100  111.  cit.     Sed^iw.  413;  People  v.  Green, 

495.  3  Wend.  (N.  Y.)  366,  374. 

1"  Moers  v.  Reading,  81  Pa.  St.  "'^   Cronise   v.    Cronise,    54   Pa. 

188,  301:  State  Line.'  etc.,   R.   R.  St.    355,    360    (see  this    case    also, 

Co. 's  App.,  77  Id.  439;  Bingham  V.  ante,   §  517);    Biugluim   v.  Miller, 

Miller,  17  Ohio.   445  ;  Johnson  v.  supra. 

R.   R.   Co..  23  111.  307;   Howell  v.  "*  Moers    v.    Reading,    supra; 

State,   71   Ga.   334;    Baltimore   v.  .Johnson  v.  R.  R.  Co.,  supra. 


744:  coNSTiTU'rroNs.  [§  527 

expressed  in  the  title  ;'"  the  custom  of  the  Legislature  to 
prohibit,  in  one  bill,  the  sale  of  liquors  in  various  detached 
parts  of  the  state,  as  determining  such  to'  be  a  compliance 
with  the  constitutional  requirement  of  a  single  subject."' 
Indeed,  as  it  is  the  duty  of  the  court  to  uphold  a  statute  as 
constitutional,  if  this  can  possibly  be  done/"  this  rule,  where 
the  meaning  of  a  constitutional  provision,  upon  the  conflict 
or  harmony  between  wliich  and  the  statute  under  construction 
the  validity  of  the  latter  depends,  is  not  perfectly  clear,  may 
require  the  court  to  put  a  construction  upon  the  constitution, 
in  consonance  with  the  legislation,  which  may  not  apparently 
be  the  most  obvious  and  natural  meaning  of  the  language.'" 
Thus,  where  the  constitution  of  a  state  declared  that  the 
members  of  its  General  Assembly  should  receive  such 
"salary"  as  should  be  fixed  by  law,  and  no  other  compen- 
sation whatever,  and  an  act  was  passed  entitling  members  of 
the  General  Assembly,  in  addition  to  a  fixed  compensation 
of  SIOOO  for  each  session  not  ex(;eeding  one  hundred  days, 
to  a  further  compensation  of  ^\0  per  day  for  the  time 
necessarily  spent  after  the  expiration  of  the  hundred  days, 
the  court,  in  order  to  avoid  a  conflict  between  the  constitu- 
tion and  the  statute,  construed  the  word  "salary"  in  the 
former  as  synonymous  with  "  wages.'"" 

"5  State  Line,  etc.,  R.  R.  Go's.  wluM-ein  it  was  claimed,  lliat  the 
App.,  supra.  election  was  "  undue  and  illegal," 
'"  Howell  V.  State,  supra.  had  no  jurisdiction,  under  that  act, 
'"  Ante,  §§  178-180.  to  declare  vacant  the  scat  of  one 
™  Shick  V.'  Jacob.  8  W.  Va.  612.  who  was  duly  and  rcirnlarly  clec- 
1"  Com'tli  V.  Butler,  99  Pa.  St.  ted  a  member  of  councils,  but 
535.  Where  tlie  constitution  whose  election  was  contested  sim- 
declaved  that  "the  trial  and  deter-  ply  upon  ihe  ground  that  he  was 
mination  of  contested  elections  disqualified  for  holding  the  oliice : 
of  .  .  .  all  public  officers  .  .  .  Auchenbach  v.  Seivert.  21  W. 
municipal  or  local,  shall  be  by  the  N.  C.  (Pa.)  349.  (Comp.  ante, 
courtsof  law,"  under  general  laws  ;  §420,  n.  21:  that,  however,  a 
and  an  act  of  assembly  provided  iiower  given  to  councils  to  judge 
that  each  branch  of  city  councils  of  the  election  of  its  members,  not 
"shall  judge  of  the  qualifications  in  terms  made  e.xchisive,  is  not 
of  its  members,  and  contested  eiec-  final  so  as  to  oust  the  common  law 
^w??-."  (See  note  195,  infia)  shall  be  jurisdiction  ot  courts  by  quo  war- 
determined  by  the  courts  of  law."  ranto.  see  Ibid. ;  and  so  where  the 
it  was  held  that  the  court,  which,  right  is  given  to  councils  to  judge 
by  gcneial  law  had  been  given  ju.--  of  the  "qualifications,  elections 
i.^diclion  in  cases  of  contested  elec-  and  returns"  of  members:  State  v. 
sions  where  the  petition  alleged,  Fitzgerald.  44  Mo.  425:  but  see 
and      specified      the      particular.s  Coni'th  v.  Leech,  44  Pa.  St.  332). 


§§  528,  529]  CONSTITUTIONS.  745 

§  528.  [It  is  obvious  from  the  instances  cited  of  the  appli- 
cation of  this  rule,  and  is  probably  universally  true,"*  that, 
wherever  usage  or  legislative  practice  has  been  allowed  by 
the  courts  to  dictate  the  interpretation  of  a  constitutional 
provision,  the  meaning  of  the  latter  was,  at  least  to  some 
extent,  subject  to  a  reasonable  doubt.  Even  the  construction 
adopted  and  acted  upon  by  the  Legislature,  whilst  always 
entitled  to  weight  and  respectful  consideration,  is  not  binding 
upon  the  courts  ;'*'  nor  is  the  fact  of  a  long  recognition  of  a 
statute,  unquestioned  and  acted  upon  by  the  courts,  conclusive 
of  its  constitutionality.''^  "We  think  we  allow  to  contem- 
porary and  practical  construction  its  full  legitimate  force 
when  we  suffer  it,  where  it  is  clear  and  uniform,  to  solve  in 
its  own  favor  the  doubts  which  arise  on  reading  the  instru- 
ment to  be  construed  ;"  but  "  acquiescence  for  no  length 
of  time  can  legalize  a  clear  usurpation  of  power,  where 
the  people  have  plainly  expressed  their  will  in  the  constitu- 
tion, and  appointed  judicial  tribunals  to  enforce  it.'"'' 
"■  Neither  the  debates  [in  the  constitutional  convention],  nor 
supposed  views  of  the  people,  nor  the  dictum  of  this  court," 
says  Mr.  Justice  Trunkey  in  a  recent  case,"*  "  nor  all  com- 
bined, can  set  aside  the  plain  meaning  of  a  constitutional 
provision ;  but  if  the  sense  of  a  clause  be  doubtful,  the  con- 
temporaneous understanding  is  material." 

§  529.  Stare  Decisis.—  [Where,  however,  an  authoritative 
judicial  decision,  involving  the  very  point  at  issue,  has 
declared  the  interpretation  of  a  constitutional  provision,  and 
that  interpretation  has  become  the  basis  of  property  and 
contract  rights,  the  rule  of  sta7'e  decisis,  applicable  in  similar 
cases  to  the  interpretation  of  statutes,  is  recognized  also  in 
that  of  constitutions."^  And  even  where  the  former  decis- 
ion is  so  clearly  erroneous  as  to  compel  its  rejection  by  a 
succeeding  court,  or  upon  subsequent  consideration,  in 
another  case,  it  remains  binding  upon  the  interests  involved 

^80  See  Cooley,  C.  L.,  85.  and   technical  defects  and   objec- 

181  State   Line,  etc.,  R.   R.   Go's,  tions,   Cont.  Impr.   Co.  v.  Plielps, 

App.,  77  Pa.  St.  429,  432.  47  Mich.  299. 

i»'^  Baltimore  v.    State,    15  Md.  iss  (jooley,  C.  L.,  85. 

576.     But  see,  as  to  mere  formal  i^*  Pike  Co.  v.  Rowland,   94  Pa. 

'85  See  Cooley,  C.  L.,  58-66.  St.  238,  249. 


746 


CONSTITUTIONS. 


[§530 


and  adjudicated  in  the  controversy  in  which  it  was  pro- 
nounced.'" It  is  projDer,  in  this  connection,  to  note  a  case 
of  soniewliat  peculiar  features,  wliich  goes  beyond  t'.iis  rule. 
A  li([uor  law  passeil  in  1S55  hy  the  Legislature  of  Indiana 
expressly  repealed  a  former  one  of  1853.  For  a  period  of 
three  years,  the  Supreme  Court  of  the  State  was  divided 
upon  the  constitutionality  of  that  part  of  the  act  of  1855 
which  inhibited  the  retailing  of  liquors  ;  but  finally,  under  a 
new  organization,  declared  the  entire  act  of  1855  unconstitu- 
tional. "  Undersuch  circumstances,"  it  was  said,  "  it  would 
be  unjust — would  be  a  violation  of  all  principles  of  right — 
to  hold  that  the  act  of  1853  was  all  this  time  in  force,  and 
the  people  incurring  its  penalties.  It  would  make  the  law 
a  concealed  trap  to  catch  victims  ;"  and  accordingly,  it  was 
held  that  the  penalties  appointed  by  the  act  of  1853  were 
not  incurred  by  persons  acting  contrary  to  its  provisions 
during  the  three  years  that  the  Supreme  Court  was  divided 
on  the  question  of  the  validity  of  the  act  of  1855.'" 

§  530.  Effect  of  Adoption  of  Adjudicated  Provisions  of  Former  or 
Other  Constitutions. — [As  a  statute  may  carry  with  it  the  con- 
struction of  its  phraseology  by  adopting  language  that  has 
acquired  a  definite  and  settled  meaning,'"  so  the  incorporation 
into  a  new  constitution  of  language  and  provisions  contained 
in  a  former  one  of  the  same  state,  which  have  received,  under 
it,  a  judicial  construction,  is  regarded  as  an  adoption  of  the 
latter;  for  such  language  or  provisions  must  be  presumed  to 


'86  Id.  59-60. 

181  ingersoll  v.  State,  11  Ind. 
464.  4G.'5.  Si-e  the  criticism  of  this 
decision  in  Sedgw.,  at  p.  338,  note 
8,  whcie  it  is  said  to  be  "  directly 
opposed  to  all  correct  theory  of 
judicial  decision  and  of  its 
elTecls," — "a  weak  yielding  to  the 
iippaicnl  haidship  of  the  case," — 
"  worthless  as  a  precedeut," — 
"one  of  the  rarest  specimens  of 
judicial  absurdity."  etc.  It  is 
suggested  that  this  langunge  is  too 
strong.  To  doubt  the  constitu- 
tionality of  an  act  is  to  affirm  it: 
ante,  j^  524.  The  division  of  liie 
court  and  the  cousccpieni  failure 
to  declare  the  act  of  1855  uncon- 
stitutional were,  in  their  etiect,  to 


all  intents  and  purposes,  except 
for  the  purpose  of  being  binding 
in  future  decisions,  an  allirmance 
of  its  validity.  The  act  of  1853 
was,  therefore,  repealed,  until  the 
final  decision  adverse  to  the  act  of 
1855  reinstated  that  of  1853.  Upon 
the  principle  above  stated  (sect^  1, 
note),  applicable  to  statutes — and 
there  seems  to  be  no  reason  why  a 
dillerent  rule  should  prevail  as  to 
constitutions — acts  done  before 
such  re-instatement  should  remain 
miaileeleil  by  it.  It  is  admitted, 
liowever,  that  the  weight  of  decis- 
ion IS  the  other  way.  See  Cooley, 
C.  L.,  234,  but  conip.  cases  cited 
thcie  in  note  2. 

'8«  Ante,  §§  367,  et  seq. 


§  530J  CONSTITUTIONS.  74T 

]iave  been  retained  with  knowledge  of  the  construction  placed 
upon  thetn,  and  the  courts  will  feel  bound  to  adhere  to  it.'** 
Thus,  where  a  constitution,  repeating  a  provision  of  a  former 
one,  authorized  the  Legislature  to  establish  "inferior  courts,'*^ 
it  was  held,  following  the  interpretation  of  that  phrase  under 
the  earlier  constitution,""  that  it  was  intended  to  mean  courts 
whose  judgment  and  decrees  were  reviewable  by  an  appellate 
tribunal,  whether  the  latter  be  a  circuit  or  supreme  court, 
and  not  necessarily  courts  whose  jurisdiction  was  inferior  or 
limited  within  the  common  law  sense  of  the  term."'  So, 
where  a  provision  in  a  new  constitution,  copied  from  that  of 
the  old  one,  gave  the  Legislature  the  right  to  tax  "  mer- 
chants, peddlers  and  privileges,^^  the  latter  word  was  inter- 
preted, according  to  the  meaning  it  had  previously  acquired,, 
as  signifying  the  exercise  of  an  occupation  or  business 
requiring  license."'  And  sirailarlj^ — and  again  analogously 
with  the  case  of  statutes, — it  has  been  held,  that,  when,  in 
the  constitution  of  one  state,  provisions  contained  in  the 
constitutions  of  other  states,  where  they  have  received  a 
settled  judicial  or  legislative  interpretation,  are  adopted  in 
language  identical  or  synonymous,  that  interpretation  is- 
deemed  to  be  adopted  with  them.'"  But  the  adoption  of 
such  an  interpretation  does  not,  of  necessity,  adopt  its  appli- 

'^3  Exp.  Roimdtree,  51  Ala.  42.  grounds  seems  satisfactorily  to  ex- 

""  See  Nugent  v.  State,  18  Ala.  plain,  or  justify  the  cxisience  of, 

521.  the  rule   under  discussion.      The 

'^'  Exp.  Roundtree,  supra.  principle   of  sttire  decisis  applies 

''-  Jenkins   v.    Ewin,    8    Heisk.  with    force  only  to  the  decisions. 

(Tenn.)  456  ;  Wiltse  v.   State,  Id.  of  the  same  court  or  jurisdiction 

544.  Cooley,  C.  L.,  ubi  supra  ;  and  it  is 

1^3  Daily  v.  Swope,  47  Miss.  367;  not  as  important  to  find  out  what 

Walker  v.  Cincinnati,  21  Ohio  St.  tiie  framers  of  a  constitution  had  in 

14  ;  Leavenworth  Co.  v.  Miller,  7  their  minds,  as  to  ascertain  what 

Kan.    47i)  ;   Hess  v.  Pegg,  7  Nev.  the   people    intended    when    they 

23;  Bish.,  Wr.   L.,  §  97;   Cooley.  adopted  it.     It  would  certainly  be 

C.   L.,   64,   where  this  rule  seems  a  violent  presumption  to  attribute 

to  be  put  upon  a  principle  at  least  to  them  a  knowledge  of,  and  an 

akin     to    that    of     stare     decisis.  intention  to  adopt,  the  construction 

In  Daily  V.  Swope,  supra,  it  is  put  put  upon  particular  provisions  of 

upon  the  ground  that  the  framers  the  constitution  in  the  jurisdictions 

of  the  constitution   must  be   pre-  from  v/hich  they  have   been  bor- 

sumed   to    have   bee.i    conversant  rowed.      No  doubt,  such  decisions 

with,    and    to    have    jnteuded     to  are  entitled  to  respect.       But  there 

adopt   the  constructiou    put  upon  seems  to  be  no  recognized   princi- 

the    provisions   transcribed   in  the  pie,  in   law  or  in  common  sense, 

state,  from  whose  constitution  they  upon   which   they  can  reasonably 

■were  borrowed.      Neither  of  these  be  given  a  higher  force. 


748  CONSTITDTIONS.  [§  531 

cation.  Thus,  where  the  courts  of  Indiana  had  determined, 
that,  under  a  certain  provision  of  tlie  constitution  of  that 
state,  special  or  local  laws  could  not  be  enacted  by  the  Legis- 
lature where  a  general  law  could  be  made  to  accomplish  the 
purpose, — whilst  that  interpretation  was  adopted  by  the 
courts  of  Nevada  upon  an  incorporation  of  the  same  pro- 
vision in  the  constitution  of  the  latter  state,  its  application 
by  the  Indiana  courts  to  the  subject  of  the  removal  of  a 
county  seat,  was  not  accepted  by  those  of  Nevada."* 

§  531.  Change  of  Language.— [Slight  changes  in  the  phrase- 
ology' of  a  later,  as  compared  with  that  of  an  earlier,  provis- 
ion would  seem,  on  account  of  the  necessary  generality  of 
language,  to  be  of  even  less  significance  in  a  constitution 
tlian  in  a  statute.""  Thus,  in  Pennsylvania,  the  constitution 
of  1776  provided  that  "  the  members  of  the  General  Assembly 
shall  receive  such  wages  and  mileage  for  regular  and  special 
sessions,  as  shall  be  fixed  by  law  ;"  the  constitution  of  1790 
changed  the  word  "  wages  "  to  "  compensation  :""*  "  the 
senators  and  representatives  shall  receive  a  compensation  for 
their  services  to  be  ascertained  by  law  ;"  the  constitution  of 
1838  left  this  clause  unaltered  :  but  that  of  1874  provided 
that  "  the  members  of  the  General  Assembly  shall  receive 
such  salary  and  mileage  for  regular  mid  special  sessions  as 
shall  be  fixed  by  law,"  and  added  :  "  and  no  other  compensa- 
tion whatever."  It  was  held  that  the  phraseology,  throughout, 
was  substantially  synonymous  ;  that  the  change  therein  was 

'^■*  Hess  V.  Pegg,  supra.  ia  the  Pa.   Const,  .of  1874,  of  tlie 

"^  See     ante,     §§  ;^78,    et    seq.  provision  of  tbe earlier  constitution 

Where  the  earlier  constitution  luid  imposing     disqualiliciUions     upon 

made  each  brancii  of  the  Lei^nsla-  persons    concerned     in     duelling, 

ture  the  iudge  of  the  "quaiilica-  with  the  omission,  however,  of  the 

tions "    of   its    members,    and   tlie  clause    contained    iu   the    earlier: 

later  authorized  it  to  judge  of  "  the  "  but  the  Executive  may  remit  the 

election  and  qualifications"  of  the  said  offence  and  all  its  disqualilica- 

members,  it  was  said  :  "  While  the  tions,"  it  is  inferred  that  the  dis- 

ad<lilion  of  the  word    "election"  qtialificatiou   pronounced    by    the 

ma}'   not   give   to    the   house    any  cousiitution  of  1874  is  not  subject 

power    which   it   might   not    have  to   removal    by  executive  pardon: 

exercis(!d  under  authority  to  judge  Buclvalew,  Const,  of  Pa.  2'6'i- 
of  the '■  qualihcaiions  "  of  its  mem-  '^'^    "Doubtless,     because    they 

bers,  it  clearly  shows  an  intention  thought  it  a  word  more  befitting 

not    to     restrict    the      legislative  the  dignity  and  importance  of  tha 

power  :"    Re    Cont.     Election    of  ottice  :"  Com'th  v.  Butler,  91)  Pa. 

McNeill,  111  Pa.  St.  335,  241.     But  St.  535,  541. 
see  note  179.     From  the  adoption 


§    532]  00NSTITDTI0N8.  749' 

not  intended  to  mate  any  change  in  the  rule  ;  and  tliat 
consequently  an  act  fixing  the  salary  uf  members  of  the 
Legislature  at  $1000  for  a  session  of  a  hundred  days,  and 
allowing  an  additional  comjDensation  of  $10  per  day  for  the 
time  necessarily  spent  in  service  after  the  expiration  of  the 
hundred  days,  was  not,  as  to  the  latter  provision,  a  violation 
of  the  constitution.'"  Similarly,  the  difference:  bet  ween  the 
phraseology  of  a  saving  clause  in  an  amended  constitution, 
providing  that  all  laws  not  inconsistent  therewith,  all  rights,, 
actions,  etc.,  should  "  continue  as  if  the  said  alterations 
and  amendments  had  not  been  made,"  and  that  of  a  sub- 
sequent new  constitution,  "  as  if  this  constitution  had  nut 
been  adopted,"  was  treated  as  insignificant  in  the  determin- 
ation of  the  question  whether  or  not  the  latter  was,  simi- 
larly to  the  former,  to  be  regarded  as,  in  fact,  a  mere  amend- 
ment of  the  constitution  previously  in  force."^ 

§  532.  Associated  Words  and  Clauses. —  [Principles  of  com- 
mon sense,  applicable  to  the  construction  of  statutes,  are,  of 
course,  equally  applicable  to  that  of  constitutions.  Such  is 
the  rule  embodied  in  the  phrase  nosGuntur  a  sociis.^^^  Thus,, 
in  a  provision  that  "  county  officers  shall  consist  of  sheriffs, 
prothonotaries,  registers  of  wills,  recorders  of  deeds,  com- 
missioners, treasurers,  surveyors,  auditors  or  controllers,  clerks 
of  the  courts,  district  attorneys,"  etc.,  it  was  said  that  "  the 
fair  import  of  the  language  '  auditors  or  controllers,'  admits 
of  one  construction  only.  It  assumes  that  each  substantially 
exercises  the  same  powers  and  performs  the  same  duties."""*^ 
Again,  the  fact  that  the  words  giving  the  governor  the  power 
of  filling  vacancies  in  offices  were  coupled  with  words  indi- 
cating the  necessity  of  the  senate's  acting  thereon,  would 
show  that  only  vacancies  in  such  offices  as  require  the  senate's 
confirmation  were  intended.""     A  provision  requiring  muni- 

'"  Ibid.      See,  also,  Id.,  p.   543,  tliose  powers  ,ind  duties  are  coex- 

asto  "salary"  and  "  fixed  salary,"  tensive  with  the  county,  by  wliat- 

occurring    in    the    same    coustftu-  ever  name  the  othcer  performing- 

lion.  them  may   be  designated,  he  is  a 

''8  Allegheny  Co.  v.  Gibson.  90  county     officer, — e.    {/.,    a     "  city^ 

Pa.  St.  397,  406.      Comp.   ante,  §  controller,"   in  a  city  co-extensive 

520.  with  a  countj'  of  the  same  name  : 

'83  Ante,  §  400.  Ibid. 

200  Taggart  v.  Com'th,   102  Pa.  '^o'  Com'th  v.  Gallen,  101  Pa.  St. 

St.  354,  304.     Consequently,  when  375. 


750  CONSTITUTIONS.  [§  533 

cipulitios,  when  incurring  indebtedness,  to  provide  for  the 
collection  of  an  unnnal  tax  "  sufficient  to  pay  the  interest  and 
also  the  principal  thereof  in  thirty  years,"  clearly  applies  only 
to  an  indebtedness  which  is  contracted  by  the  municipality 
itself,  and,  for  some  definite  period,  is  interest-bearing,  and 
not  to  incidental  and  ordinary  expenses,  e.  g.,  for  the  making 
and  repairing  of  township  roads."'  And  so,  where  the 
limitations  contained  in  the  first  clause  of  a  section  clearly 
related  only  to  the  conferring  of  rights  upon  individuals, other 
similar  limitations  contained  in  the  second  clause  were  held 
to  be  manifestly  directed  to  the  same  object,  and  not  to  apply 
to  municipal  corporations."'  Nor  would  a  provision  for- 
bidding the  creation,  renewal  or  extension  of  charters,  in  a 
section  relating  to  corporations  ''  with  banking  or  discounting 
privileges,"  extend  to  such  as  had  no  such  powers,  e.  g.,  to 
municipal  corporations,'"  or  building  associations."'^ 

[It  may  be  here  observed,  also,  that,  in  a  provision  that 
"  all  courts  of  record  and  all  existing  courts,  which  are  not 
specified  in  this  constitution^  shall  continue,"  etc.,  the  rela- 
tive clause  was  held  applicable  to  both  the  antecedent  terms, 
not  only  the  one  immediately  preceding  it."' 

§  533.  Expressio  Unius,  etc. — [The  maxim  Expressio  unius 
est  exclusio  alterius,  in  the  sense  in  which,  as  has  been  seen,"' 
it  is  properly  applicable  to  the  construction  of  statutes,  is 
equally  so  in  the  interpretation  of  constitutional  provisions. 
Thus,  where  such  a^provision  gave  the  right  to  tax  "  mer- 
chants, peddlers  and  privileges,"  it  was  said  to  be  clear  that 
neither  of  the  first  two  words  included  that  which  the  third 
made  subject  to  taxation."*     It  was  said,  however,  by  a  late 

^"^  Leliii,^!  Coal  Co.'s  App.,  112  of  tlic  price  for  present  payment. 

Pa.  Si.  o60,  369.  or  llio  usual  lending  of  money  by 

-"^    Stale     V.    Wilson,    12    Lea  building    associations,    but   in  the 

(Tenn.)  246;  Ballentine  V.  Pulaski,  sense   in    -vvbicli    it   is    commonly 

15  Id.  6J33.  understood,  its  banking  sense,  con- 

■■^"^  See  Moers  v.  Reading.  21  Pa.  fined    to    dealing    in    promissory 

St.  188.  notes,  bills   of  exchange,  or  other 

^0="  Schobcr  v.  S.  F.  &  L.  Ass'n,  negotiable   paper  :   Schober  v.  S. 

35  Pa.  St.  223  ;  Cooper  v.  S.  &  L.  F.  &  L.  Ass'n,  supra,  at  pp.  229, 

Ass'n,    100   Id.    402.       The   word  230. 

"discount"   was  held  to  be  con-  -"«  Com'th  v.  Ilartrauft,  77  Pa. 

struable   in   no  strained  sense,  so,  St.  154,  155.     See  ante,  §  414. 

e.  r/.,  as  lo  inctlude  the   selling  of  -"^  Ante,  t;§  397,  et  seq. 

property  with  a  remission  of  part  '•^"8   Jenkins  v.   Ewiu,    8  Ileisk. 


^  5.''3j  C0^'STITUTI0N8.  751 

-chief  justice  of  Pennsylvania:  '*  Tiie  expression  of  one 
thing  in  the  constitution,  is  necessarily  the  exclusion  of 
things  not  expressed.  This  I  regard  as  especially  true  of 
constitutional  provisions,  declaratory  in  their  nature.  The 
remark  of  Lord  Bacon,  '  that,  as  exceptions  strengthen  the 
force  of  a  general  law,  so  enumeration  weakens,  as  to  things 
not  enumerated,'  expresses  a  principle  of  common  law 
applicable  to  the  constitution.'""^  Ko  doubt,  "  when  the 
constitution  defines  the  circumstances  under  which  a  riirht 
ma.y  be  exei-cised  or  a  penalty  imposed,  the  specification  is  an 
implied  prohibition  against  legislative  interference  to  add  to 
the  condition,  or  to  extend  the  penaltj^  to  other  cases.""" 
J3ut  this  proceeds  upon  the  principle,  that,  where  a  right  is 
given  and  the  conditions  of  its  exercise  are  prescribed  by  a 
superior  power,  an  inferior  one  charged  with  acting  under 
and  in  accordance  with  it  cannot  vary  or  add  to  those  con- 
ditions,— a  principle  obviously  alike  applicable  whether  the 
superior  power  be  the  people  themselves  and  the  governing 
rule  the  constitution,  or  whether  the  superior  power  be  the 
Legislature  and  the  governing  rule  a  statute.""  Except  in  the 
sense  above  indicated,"'"  the  maxim  referred  to  can  certainly 
not  be  deemed  to  be  a  principle  of  universal  application  in 
the  construction  of  constitutions,  any  more  than  of  statutes."" 

<Tcnn.)  456.  So,  in  the  case  of  held  incompetent  for  the  Legisla- 
the  Cherokee  Nation  v.  Georgia,  5  ture  to  ndd  to  or  change  the  con- 
Pet.  ],  the  definition  of  thc'word  stitutionally  established  qiialifica- 
"  foreign,"  as  excluding  Indian,  tions  of  an  officer.  Substantially 
nations  was  arrived  at  (p.  19),  at  the  same  principle,  and  notiiing 
least  in  part,  by  reference  to  the  more,  was  recognized  by  the  decis- 
provision  conferring  on  Congress  ion  in  Page  v.  Allen,  supra,  the 
power  to  regulate  commerce '•  with  point  involved  in  which  scarcely 
foreign  nations,  and  among  the  justifies  the  broad  generality  of 
several  states,  and  with  the  Indian  the  language  quoted.  The  ques- 
tribes,"  in  which  the  particular  tion  was  simply  whether  the  Leg- 
mention  of  the  latter  was  held  islature  could  add  to  the  constitu- 
clearly  to  exclude  them  from  the  tional  requirements  to  qualify  a 
more  general  phrase  "  foreign  person  to  vote.  Compare,  how- 
nations,"  under  which  it  was  ever,  Be  Thirty-fourth  Str.  R.  R. 
claimed  they  were,  and  admitted  Co.,  103  N.  Y.343,  as  to  the  right 
they^  might  be,  comprehended,  of  the  Legislature  to  prescribe  con- 
See  §  514.  n.  71.  ditions    for    the    construction    of 

209  p.|ge  y   Allen,  58  Pa.  St.  338,  street  railroads,  additional  to  those 
346,  per  Thompson,    C.   J.      See,  prescribed  by  the  constitution, 
also.  State  v.  Taylor,  15  Ohio  St.         211  gee  ante,  §  351, 

137,  ante,  g  513.  212  gee  Jenkins  v.  Ewin,  supra. 

210  Cooley,    C.    L.,    78,    citing,  213  People  v.  Wright,  6  Col.  92, 
among    other    eases,    Thomas    v.      94. 

Owens,  4  Md.  189,    where   it  was 


752  CONSTITUTIONS.  [§§  534,  535 

Whilst  its  application  in  the  other  sense  may,  to  a  limited 
extent,  comport  with  the  general  theory  of  the  federal 
constitution,  as  a  delegation  of  express  powers  in  wliich  all 
that  is  not  granted  is  to  be  deemed  withheld,  it  is  utterly  at 
variance  with  the  theory  of  state  constitutions,  which  are 
limitations  upon  the  powers  of  government,  and  under  which 
whatever  power  is  not  denied  is  deemed  to  exist.""^  To 
give  but  a  single  illustration  where  instances  might  be 
multiplied  indefinitely  :  where  a  constitution  authorized  and 
directed  the  Legislature  to  provide  by  law  for  "the  establish- 
ment of  schools  throughout  the  state,  in  such  manner  that 
the  poor  may  be  taught  gratis,"  it  was  held  that  the  pro- 
vision did  not  (as,  upon  the  principle  expressio  unius,  etc.,^ 
in  its  misconceived  sense,  it  undoubtedly  would)  imply  a 
limitation  upon  the  power  of  the  Legislature  to  establish  a 
common  school  system,  free  to  the  rich  as  well  as  the  pooi"."'* 

§  534.  Computation  of  Time.— [The  rules  for  the  computation 
of  time  under  constitutional  provisions  do  not  differ,  in  the 
various  states,  from  those  there  recognized  as  applicable  to 
the  same  purpose  under  statutes.  Thus,  under  provisions 
requiring  the  governor  to  return  bills  presented  to  him  for 
approval  within  a  certain  number  of  days,  it  is  in  general 
held  that  the  lirst  is  to  be  excluded,  and  the  last  to  be  included 
in  the  computation.''"'  A  '"  day  "  in  common  acceptation,  and 
ordinarily  in  a  constitution,  means  a  civil  day  of  twenty-four 

^'^    See    Sharpless    v.    Philadel-  until    Aug.    18,   atxl   on   Monday, 

phia,  21   Pa.  St.   147,  and  post,  §  Aug.    23,   neither   house    was    in 

535.  session.     (It  is  intimated    in   that 

'■"'   Com'th  V.   Ilartman,  17  Pa.  case,    al.so,  that,  wliere  at  the  time 

St.  118.  of  the  adoption  of  a  constitution  a 

216   i>nce   V.    Whitman,   8    Cal.  certain  method  of  computing  time 

412;   Iron   Man.  Co.  v.  Ilaight,  39  is  recognized,  it  applies  to  compu- 

Id.  540  ;  People  v.  Hatch,  33  111.  9;  tations  under  constituliouai  ]>rovis- 

Corwin  v.  Comptr.-Gen.,    G  liich.  ions;    but    whether    a    statutory 

(S.  C.)  390.     The  constitutions  of  change    in    the    rule    would   also 

Illinois  and  Sou. h  Carolina  except  ajiply      to      the     constitution      is 

Sundays    from    the   computation.  doubted  :  p.  607.)     A    three  days' 

See,  under    a    limitation    to    live  limitation      upon      the     right     of 

days,    Sundays   excepted,    Op.    of  cither   branch    of  the   Legislature 

Just.,  45  N.  il.  COT,  where  it  was  to  adjourn   seems  to  be  exclusive 

held  that   a  bill  sent   to  the   gov-  of    Sundays  :     Buckelew,     Const, 

ernoron  Wednesday,  Aug.  17,  and  of    Pa.,     p.    52.      And     see     Id., 

returned  with  his  veto  on  Wednes-  pp.  lOo-lOG,  as  to  computation  of 

day,    Aug.    24,    was  a  valid  law,  lime  generally  under  the  Pa.  Con- 

although  the  bill  did  not  actually  stitution. 
come    into    the  governor's   hands 


§  535]  CON8TITDTION8.  753 

hours,  beginning  and  ending  at  midniglit  ;*"  or  m  a  provision 
requij'ing  bills  to  be  presented  to  the  governor  "  one  day 
previous  "  to  adjournment,  a  space  of  at  least  twenty-four 
hours."' 

§  535.  Implications  and  Intendments. — [The  SubjCCt  of  impli- 
cations and  intendments  in  constitutional  provisions  belongs 
so  peculiarly  to  a  work  devoted  to  the  construction  of  con- 
stitutions, that  anything  like  an  attempt  at  exhaustive 
examination  of  it  would  be  out  of  place  here.  All  that  ia 
relevant  in  this  connection  is  the  statement  of  the  general 
rule,  that  whatever  is  indispensable  to  render  effective  any 
provision  of  a  constitution,  whether  the  same  be  a  prohibition 
or  restriction,  or  the  gi-ant  of  a  power,  must  be  deeuicd 
implied  and  intended  in  the  provision  itself  ;'^'^  that,  where- 
ever  a  general  power  is  given  or  duty  enjoined,  evevy 
particular  power  necessary  for  the  exercise  of  the  one  and 
the  performance  of  the  other  is  given  by  implication  :""  and 
that  this  rule,  in  its  turn,  is  subject  to  the  other, 
that,  where  the  means  for  the  exercise  of  a  power 
granted  are  also  given,  no  other  or  different  means  or 
powers  can  be  implied  on  the  ground  of  convenience  or 
efficiency,"*  and  to  the  further  qualification,  elsewhere 
referred  to,"'  that,  in  the  absence  of  specification  of  such 
means,  none  interfering  with  established  relations  or  existing 
rights  and  obligations  will  be  presumed  to  be  intended,  unless 
strictly  necessary  to  give  effect  to  the  provision.""  There  is, 
indeed,  a  difference,  in  respect  of  implied  powers,  between 
the  federal  and  state  constitutions.  "The  constitution  of 
the  United  States  consists  chiefly  in  a  grant  of  enumerated 
powers;  hence,  in  interpreting  it,  the  courts  presume  the 
existence  of  no  power  not  expressly  or  impliedly  conferred. 
On  the  other  hand,  a  state  constitution  proceeds  on  the  idea 

'"   Op.    of  Jusjt.,   supra,    at  p.  tion  gives  it  the  riglit  to  declare  a 

610.  a  still uteuncotistitulional  and  void: 

«'«Hyde  V.  White,  24  Tex.  137.  Emciick  v.   Hanis,  1  Binn.   (Pu  ) 

5'«  Story,  Const.,  g  430;  Cooley,  416,  420  ;  Coolcy,  C.  L.,  192,  etc. 
•  L.,  77.  -■-'  Field  v.  People,  supra. 

"0  Field   V.    People,    3    111.    79.  '"  Ante,  §  520. 

Thus  the  duty  imposed  upon  the         "3  Com'ih  v.  Downcs,  24  Pick^ 

judiciaiy  to  support  the  coustitu-  (Mass.)  227. 

48 


754  CONSTITUTIONS.  [§  536 

that  all  legi8lative  functions  arc  in  the  Legislature;'""  and 
"  hence  the  General  Assembly  may  exercise  all  the  poM'ors 
which  are  properly  legislative,  and  which  are  not  taken  away 
by  our  own  or  by  the  federal  constitution.""'  "Congress 
can  pass  no  laws  but  those  which  the  constitution  authorizes, 
cither  expressly  or  by  clear  implication,  while  the  Assembly 
has  jurisdiction  of  all  subjects  on  which  its  legislation  is  not 
prohibited.  The  powers  not  granted  to  the  Union  are  with- 
held, but  the  state  retains  every  attribute  of  sovereignty 
which  is  not  taken  away,""" 

§  536.  Imperative  and  Directory  Provisions. — [It  has  been  laid 
down  in  a  recent  case  that  constitutional  provisions  ai-e 
absolutely  mandatory,  and  in  no  case  to  be  regarded  as 
directory  only,  to  be  obeyed  or  not,  within  the  discretion  of 
either  or  all  the  departments  of  the  government."'  However 
well  founded  in  reason  this  rule  may  be,"*  and  however 
salutary  in  practice  its  general  adoption  might  prove,  it  is 
certainly  not  to  its  full  extent,borne  out  by  authority.  Prob- 
ably as  great  liberties  have  been  taken  in  this  respect,  with 
constitutional  as  with  statutory  provisions,  the  ai'guments 
decisive  as  to  the  former  being  in  the  main,  drawn  fi'om 
considerations  of  convenience  and  supposed  reasonableness, 
tested  by  the  imagined  consequences  of  a  contraiy  inter])re- 
tation,  and  leading  the  courts  to  the  conclusion,  whether 
properly  or  improperly,  and  with  much  divergence  as  to  the 
results  arrived  at  concerning  particular  provisions,  that  tiie 
direction  in  question  was  or  was  not  intended  to  becomiJJied 
with  strictly  and  at  all  events."'  As  in  the  case  of  a  statute,"" 
where  a  constitutional  provision  clearly  leaves  something  to 
the  discretion  of  the  Legislature, — as  where  it  requii'es  tliat  a 
bill,  before  becoming  a  law,  shall  be  fully  and  distinctly  I'cid 

'-^Bish.,  "Wr.  L.,  §  03.  lion,  and  the  grant  of  a  power  is  n 

^■-^  Sliaipless  V.  Pliiladclpliia,  21  mandate,   Mie  nile  as   to    Mie  ron- 

Pii.  St.  147,  IGl.  struclion  ol' statutes  not  apii]yii;a  ; 

-'-"  (.'oni'lh   V.   Ilartman,  17  Pa.  so  tlial   a  consiimtinnal   pn. vision 

St.  lis,  119;   Wcister  v.   Hade,   52  for   Lolding   elections    belwien    0 

Id.  47-l:Cooley,  C.  L,  10,  11.  A.M.    and    7    P..M.    renders    notes 

'^-'^  Hunt  V.  State,  22  'I'ex.   App.,  received     alter      7     I'.M.      illegal. 

1500.     And  see  Varney  v.   Justice,  Comp.  ante,  j;  438. 

(Ky.)  G  S.   West.  ]{ep.  407,  where  "=-  See  Cooley.  C.  T;.  93,  94. 

!-;  said  tliat  itroldbilory  language  in  ^'^^  Comp.  Cooley,  C.  L.,  88-98. 

a  constitution  is  a  positive  nega-  ^'■^^  Ante,  g  314. 


§536] 


CONSTITUTIONS. 


755 


on  tliree  different  dnys, — it  nminifestly  addresses  itself  to  the 
jndi^iiicnt  of  that  body, — e.  g.^  as  to  what  readiiit^  shall  be 
snfiiciently  full  and  distinct,"' — and  in  that  sense,  must 
obviously  be  deemed  dii-eetory."*  8itnilarl_y,  where  it  directs 
the  awarding  of  contracts  to  the  lowest  bidder  and  upon 
ado(|uato  security. ""  But  the  courts  have  gone  much  fai'tiier. 
A  detailed  examination  of  what  provisions  have  been  held 
directory  and  what  mandatory,  and  of  the  reasoning  by 
which  such  dec'sions  have  been  fortilied,  is  not  permissible 
here.  A  few  instances  of  both  classes,  however,  may  seive 
to  point  out  the  effect  of  the  rule  applied  to  constitutions  as 
compared  with  statutes.  Ic  is  said,  that,  as  a  constitution  is 
to  be  interpreted  so  as  to  carry  out  the  great  principles  of 
Sfovernment,  not  to  defeat  them,  irs  connnands  as  to  the  time 
or  manner  of  performing  an  act  are  to  be  regarded  as  mei'ely 
directory,  wherever  it  is  not  said  that  the  act  shall  be  done 
at  the  time  or  in  the  manner  prescribed,  and  np  other."* 
Consequently,  the  time  prescribed  by  a  provision  in  the 
schedule  of  a  constitution  for  the  Legislature  to  provide  by 
law  for  the  holding  of  an  election  was  held  directory."^  The 
same  effect  has  b^en  given  to  provisions  prescribing  the 
style  of  statutes, — "  Be  it  enacted,"  etc.  ;"^  requiring  an  oath 
from  legislators  to  support  the  constitution  ;""  obliging 
judges  to  give  written  opinions  on  every  question  arising  on 
the  record."^  Mandiitory,  on  the  other  hand,  liave  been  held 
provisions  requiring  the  signing  of  bills  and  joint  resolutions 
b}'  the  presiding  officers  of  the  respective  houses  of  the 
Legislature,  and  by  the  secretary  of  the  senate  and  the  clerk 
of  the  house  f^"  and  the  insertion  of  an  emergency  clause, 


231  Coolev.  C.  L.,  96. 

2=2  See  Miller  v.  State,  3  Ohio 
St.  475. 

•2S3  Pooplo  V.  Fay,  3  Lans. 
(N.  Y.)  398 (ante,  §  521);  or  forbids 
special  legislation  "  whrre  a  aenc- 
ral  law  can  be  made  .-ipplicable  ": 
Buckalew,  Const,  of  Pa.,  p.  8;J,  and 
cases  there  cited. 

•-"^  Com'th  V.  Clark,  7  Watts  & 
,S.  (Pa.)  127,  133. 

2"-'  Ibid.  But  sec  State  v.  John- 
son. 20  Ark.  281,  as  lo  a  provision 
requirinii-  olticcrs  to  qualify  wiihin 
.iitleendayjafter  notice  of  appoint- 


ment. 

23S  Swann  v.  Buck,  40  iMiss. 
2C8  ;  McPhcrson  v.  Leonard,  29 
Md.  377;  Cape  Girardean  v.  Uilcy,  , 
52  Mo.  424.  But  see  contra,  State 
V.  Piog-ers,  10  Nev.  250  ;  Staie  v. 
Piil.erson,  (X.  C.)  4  S.  East.  Rep. 
350. 

23'  Hill  V.  Boyland.  40  Jliss.  CIS; 
so   as  to  sustain  legislation. 

•-ss  "VVdlels  V.  iUdgwav,  9  Ind. 
367. 

2-9  State  V.  Glenn,  18  Nev.  34; 
and  see  Cooley,  C.  L.,  184,  and 
cases  there  ciicd. 


756  OONSTITUTIONS.  [§  537 

in  case  the  statute  was  intended  to  take  cfToct  before  publica- 
tion ;"•  requirements  of  proportional  taxation  ;""  a  prohi- 
bition against  the  division  of  counties  of  a  certain  size  with- 
out a  popular  vote  ;'"  a  provision  giving  the  right  of  cumu- 
lative voting  at  corporate  elections."'  Again,  among  the 
more  important  provisions  contained  in  many  constitutions 
which  have  been  construed  by  some  courts  as  mandatory, 
and  by  others  as  directory,  are  provisions  requiring  the  read- 
ing of  bills  three  times,  on  three  different  days,  etc.,""  and 
confining  each  statute  to  a  single  subject,  to  be  expressed  in 
its  title."'] 

§  537.  Waiver  of  Constitutional  Provisions.  Estoppel. — 
["  Where  a  constitutional  provision  is  designed  for  the  protec- 
tion solely  of  the  property  rights  of  the  citizen,  it  is  competent 
for  him  to  waive  the  protection,  and  to  consent  to  such  action 
as  would  be  invalid  if  taken  against  his  will.""'  Thus,  a  pro- 
vision forbidding  the  taking  of  private  property  without  com- 
pensation may  be  waived."'  And  where  one  voluntarily  avails 
liimself  of  the  benefit  of  a  statute, — e.  </.,  where  he  chooses  to 
pursue  a  remedy  provided  by  statute,  in  preference  to  a  com- 
mon law  remedy  that  was  open  to  him,"^  or  receives  a  benefit 
or  compensation  appointed  by  a  statute,"^  he  is  taken  to  have 
waived  the  objection  he  otherwise  might  have  made  to  its 
constitutionality.""     Nor,  in  general,  can  this  question  be 

"OMark  v.    Stale,    15  lad.    98,  to    be    directory.      The    contrary 

and  see  ante,  §  521.  view  is  said  to  be  held  in  all  other 

"1  Oliver   v.    Wash'n   Mills,    11  states  :  Cooley.  C.  L.,  180. 

Allen  (Mass.)  2G8  ;   and  see  Life  "s  Coolcy. 'C.  L.,  21G. 

Ass'n  V.  Assessors,  49  Mo.  512.  2477;^    Albany   Str..    11   "Wend. 

2«  State  V.  Merriman,  G  Wis.  14.  (N.  Y.)  149;  Brown  v.  Worcester, 

-"  Pierce  v.  Com'th,  104  Pa.  St.  13    Gray    (Mass.)    31  ;    and     see 

150.  Edmundson  v.  R.  R,  Co.,  Ill  Pa. 

*•"  Directory:  Miller  v.   State,  3  St.  316. 

Ohio  St.  475  ;  Pirn  v.  Nicholson,  ^•'^  Ralston  v.  Oursler,  12  Oliio 

6   Id.    17G.     Mandatory:   Superv's  St.  105. 

V.  Hcenan.  2  Minn.  330  ;  Siechert  '"»  See   He   Woolsev,  95  N.    Y. 

V.    East  Saginaw,   22  Mich.    104;  135;   Philadelphia   v.    Com'th,  52 

"Weill  V.    Kenfield,    54  Cal.    Ill  ;  Pa.  St.  451,  455. 

People  V.  Starno,  35  111.  121;  Me-  '^'■''^  So  one  i\ho  has  taken  stock 

Culloch    V.     Slate,    11    Ind.    434;  in  a  corporation,  thougli  not  one 

Cannon  V.  Mathes,  8  ileisk.  (Teun.)  of     the    corporators,     bnt     with 

504.  knowledge  of  a  defect  that  would 

"5   Pirn    V.    Nicholson,     supra;  render  tiie  incorporation  uiicons-ti- 

State   V.    Covington,  29   Ohio   St.  tntional,  waives  the  right  to  take 

102  ;  Washington  v.  Page,  4  Cal.  advantage   thereof  :    McClincli   v. 

388;  lie  Boston,  etc..  Mining  Co.,  Sturgis,  72  Me.  288. 
51  Id.  024 — hold  such   provisions 


§§  638,  539]  coNSTiTTTTiONS.  757 

raised  by  any  one  not  having  an  interest  in  the  matter,  or  not 
being,  in  point  of  fact,  affected  by  the  act.""  Thus,  the 
question  of  the  constitutionality  of  an  act  relating  to  the 
opening  of  a  street,  cannot  be  raised  by  one  not  assessed  for 
the  improvement  under  the  act."' 

§  538.  Enactments  and  Contracts  in  Violation  of  Constitutional 
Provisions. — [A  statnte,°"  or  municipal  ordinance"^*  violating 
any  provision,  or  passed  in  disregard  of  any  mandate  or 
prohibition,  of  the  constitution,  has  no  legal  force.""  But 
an  enactment  may  be  unconstitutional  in  part  only,  and  valid 
as  to  the  rest ;  the  question  depending  upon  the  nature  of 
the  defect, — whether  it  is  one  tliat  pervades  the  whole  and 
attaches  to  every  portion  of  it,  or  one  that  affects  only  some 
clause  or  provision  capable  of  being  detached  from  the  rest 
without  destroying  the  completeness  of  the  legislation  or 
causing  a  departure  from  the  main  intent  of  its  enactment."** 
A  contract  violating,  or  tendingtopromote  the  violation  of,  a 
constitutional  provision,  is  equally  illegal  and  void  with  a 
contract  having  a  similar  effect  as  to  a  statute.'"  Thus,  a 
contract  forbidden  to  a  municipality  by  the  constitution 
was,  in  a  case  already  referred  to,"'  held  to  confer  no  rights 
u]3on  it;  and  the  Fourteenth  Amendment  of  the  federal 
constitution  having  declared  all  debts  or  obligations  incurred 
in  aid  of  insurrection  or  rebellion  against  the  United  States, 
or  any  claim  for  the  loss  or  emancipation  of  any  slave,  illegal 
and  void,  a  contract  made  since  the  war  for  the  sale  and 
delivery  of  bonds  of  confederate  states,  was  held  to  be  void, 
and  not  a  basis  of  an  action  for  the  recovery  of  damages  for 
the  breach  thereof."^' 

§539.  Commencement.  Self-executing  Provisions. — [In  aCCOrd- 
dance  with  the  rule  that  fractions  of  a  day   are  not   to   be 

"'  Cooley,  C   L.,  197.  anfl  oases  v.   Campbell,  (Minn.)  35  N.  West, 

there  circd  to  which  mny  be  added  Rep.  3G(i.     And  as  to  the  presmnp- 

Franklin  Co.   v.  State,  (Flu.)  Feb.  liou     against     uncoiistiliiiionality, 

15,  18S8.  see  ante,  §  537,  and  ^§  178.  et  scq., 

^'"'^  Re  Woolsey,    supra.     As  to  and  ca^esthcie  cited,  to  wiiich  may 

the   waiver   of   the   constitutional  be   added     Stump    v.    Hoi-nback, 

right  of  trial  by  jury,  see  Cooky,  (Mo.)  G  S.  West.  Rep.  35fl. 
C.  L..  217.  "1  See  ante.  g§  4-19,  et  seq. 

"3  Cooler,  C.  L.  156,  etc.  "«  Eai  leys'  A>p.,  ante,  s  521. 

"■I  Id.  240-241.  "9  Branch  v.  Haas,  10  Fed.  Rep. 

-"  See  hi.  224,  and  note.  53. 

"s  Id.   211,   etc.      Comp.  Coates 


To  8  CONSTITUTIONS.  [§  539' 

regarded,  a  constitution  or  constitntiond  amendment  is 
ordinarily  to  bo  deemed  in  force  on  tlie  wliole  of  tlie 
day  of  its  adoption  by  the  vote  of  the  people. ''°'  But,  in 
a  ease  where  the  vote  of  a  township  aufchorizing  the  issue 
of  certain  bonds  was  past  on  the  same  day  as,  but  prior 
to  the  closing  of  the  polls  for,  an  election  that  i-esulted  in  the 
adoption  of  a  new  constitution  prohibiting  such  issue,  it  was 
heltl  that  the  court  would  cotit-ider  the  fractions  of  a  thiy, 
and  ;is  the  constitution  could  not  take  effect  until  the  close 
of  the  voting,  the  issue  was  held  valid. "^  And  it  would 
seem  that  this  decision  should  furnish  the  jn'oper  rule  for 
deterniiiiing  when  a  constitution  should  l)e  deemed  in  foi-ce 
with  refei'ence  to  subjects  as  to  which  it  changes  previously 
existing  I'ights  nvd  duties. 

§  54:0  [A  delicate  question  sometimes  arises  in  the  inter- 
pretation of  constitutional  jirovisions,  which,  whilst  this 
treatise  has  no  jM'oper  place  for  its  extended  consideration, 
n)ay  yet  be  here  briefly  referred  to, — whether  or  not 
they  are  self-executing.  It  is  laid  down:  '"A  constitu- 
tional pi-ovision  may  be  said  to  be  self-executing  if  it  suj)- 
pliesa  sufficient  rule  by  means  of  which  the  right  given  may 
be  enjf)yed  or  protected,  or  tlie  duty  imposed  may  be 
enforced  ;  and  it  is  not  self-executing  where  it  merely  indi- 
cates principles,  without  laying  down  rules  by  means  of 
which  those  principles  may  be  given  the  force  of  law.'"*°^ 
Thus,  a  constitutional  provision,  that,  in  all  elections  for 
directors  or  managers  of  a  corpoi-ation,  each  mend)er  niay 
east  for  one  candidate  all  the  votes  lie  is  entithul  to  cast,  is 
self  executing.'"  A  provision  that  ''all  taxes  shall  be 
iinifdi-m"  and  "levied  undei'  general  laws,"  is  not  self  ex- 
ecuting, and  therefore  does  not  i'e])eal  any  s]')ecial  and  local 
tax  laws.*"  Indeed,  whether  or  not  a  constitutional  provision 
is  to  1)0  given  the  effect  of  re]X'aling,  by  itself,  and  without 
further  legislation,  existing  statutes,  is  one  as  to  whieh  no 
al)S(jlute  rule  can,  it  seems,  be  formulated.     It  has  b(;en  said, 

""^o  Scliall    V.  Bowman.    63   III.  «3   Piercc    v.    Com'tli,    104   Pa. 

321.  St.  l.-.O. 

•■'^'  Lniiisvilk;  v.  Suv.   B'k,    104.  •"  I.ebigh    Inm    Co.    v.    Lower 

U.  S.  4(il).  Maciiiigic,  81  Pa.  St.  4S2. 

■^''- Coo  ley,  C.  L..  100. 


§  539]  CONSTITUTIONS.  759 

that,  where  a  particular  proceeding,  authorized  by  a  former 
statute,  is  prohibited  by  a  constitution,  the  statute  is  to  be 
deemed  abrogated,  and  that,  if  an  act  would  be  nnconstita- 
tional  if  passed  after  the  adoption  of  the  constitution,  because 
of  inconsistency  with  it,  it  is  annulled  by  the  constitution  if 
in  existence  at  the  time  of  the  hitter's  adoption."^  But  the 
question,  in  every  case,  would  seem  to  be  one  of  intention, 
to  be  considered  in  the  light  of  the  evil  to  be  remedied  or 
guarded  against  by  the  provision.'** 

"5  Hills  V.  Chicago,  GO  111.  8G.  90  Pa.    St.  397,  408-413;   Cooloy, 

"•is  Lewis  V.   llollahan,  103  Pa.  C.    L.,    98-102;    Bisb.,    Wr.    L., 

St.     425,    430.      See,    for    discus-  §§  11a,  note,  92b  ;  and  comp.  ante, 

sions  of  tills  !r.ubject,  tlic  case  just  §  520,  and  §  218,  note  37. 
cited;  Allegheny   Co.    v.    Gibson, 


ADDENDA. 


■See  §  77,  p.  104,  note  45.— Under  a  statute  enabling  married  women  to 
maintain,  without  joinder  of  their  husbands,  actions  for  the  "recov- 
ery and  protection  "  of  their  property,  it  was  held,  in  Castner  v. 
SWxr,  43  N.  J.  Eq.  8;  9  Centr.  Rep.  45,  that  a  married  woman  who 
had  acquired  an  interest  as  tenant  in  common  in  certain  real  estate, 
mipfht  alone  maintain  a  proceeding  for  partition. 

§  79.  p.  108,  note  71.— Under  a  statute  declaring  that  no  "grant  in 

fee  or  of  a  freehold  estate,"  not  duly  acknowledged  or  attested  in  a 
prescribed  manner,  should,  until  so  acknowledged,  etc.,  take  effect 
as  against  "a  purchaser  or  incumbrancer,"  it  was  held,  in  Nellis  v. 
Munson,  (N.  Y.)  11  Ce}itr.  Rev.  449,  that  the  creation  of  a  right  to 
bring  water  in  pipes  over  the  land  of  one  for  the  benefit  of  another 
was  within  the  words  "grant  in  fee,"  etc.;  and  (following  Chamber- 
lain v.  Spargur,  86  iV.  Y.  603)  that  "purchaser  or  incumbrancer" 
included  all  subsequent  grantees  with  or  without  notice. 

§  114,  p.  155,  note  (5.)— Compare  as  to  the  American  doctrine  upon 

this  subiect :  Cooley,  C.  L.,  779-780  (*  620)  and  1  Dill,  Mun.  Corp. 
(8rd  cd.)  S  196,  and  cases  referred  to.  It  can  scarcely  be  said  that 
the  understanding  upon  this  point  is  entirely  settled  in  this  country. 
The  most  acceptable  view  is  probably  that  expressed  in  1  Dill,  vbi 
supra:  "Unless  the  votes  for  an  ineligible  person  are  expressly 
de(!lared  to  be  void  the  effect  of  such  a  peison  receiving  a  majority 
of  the  votes  cast  is,  according  to  the  weight  of  American  authority, 
and  the  reason  of  the  matter  (in  view  of  our  mode  of  election,  with- 
out previous  binding  nominations,  by  secret  ballot,  leaving  each 
elector  to  vote  for  whomsoever  he  pleases),  that  a  new  election  must 
be  held,  and  not  to  give  the  office  to  the  qualified  person  having  the 
next  highest  number  of  votes." 

§  150,  p.  209,  note  (c.)— The  Tennsylvania  liquor  law  of  13  May. 

1887.  "An  act  to  restrain  and  rcgalate  the  sale,"  etc.,  places  the 
granting  of  licenses  in  the  hands  of  the  court  of  Quarter  Sessions, 

[761] 


762  ADDENDA. 

and  provides  that  tlie  same  "shall  hear  petitions  from  residents  of 
the  ward,  borough  or  township,  in  addition  to  tliat  of  the  applicant, 
in  favor  and  remonstrances  a.2:aiiist  the  application  for  such  license, 
and  in  all  cases  shall  refuse  the  same  whenever  in  the  opinion  of  the 
said  court,  havini;  due  regard  to  the  number  and  character  of  the 
petitioners  for  and  against  such  application,  such  licen.se  is  not 
necessary  for  the  accommodation  of  the  public  and  entertainment 
of  strangers  or  travelers,  or  that  the  applicant  or  applicants  is  or  are 
not  tit  persons  to  whom  such  license  shoidd  be  granted."  The  refu- 
sal of  the  court  of  Q.  S.,  in  the  absence  of  any  remonstiance  and 
wiilunit  assigning  any  reason,  to  grant  the  application  for  renewal 
of  license  of  a  jicrson  admittedly  of  unexceptionable  character, 
whose  petition  was  properly  presented  and  fortilied  l)y  an  additional 
recommendation  signed  by  fifly-four  business  men  of  his  neighbor- 
hood, was  made  the  basis  of  an  ajjplication  to  the  Supreme  Oourt 
for  a  maudanuis  to  compel  the  granting  of  the  same.  In  denying 
the  wril  prayed  lor,  that  court,  j)er  Paxson,  J.,  said,  after  referiing 
to  the  title  as  showing  the  act  to  be  one  in  restraint  of  the  liquor 
traffic  :  "  It  is  an  error  to  suppose  that  the  sole  duty  of  the  court  is 
contined  to  the  inquiry  wlietiier  the  applicant  is  a  citizen  of  the 
United  States  and  a  mat:  of  good  moral  character.  Back  of  all  this 
lies  the  question  whether  the  jietitioner's  house  is  "  necessary  for 
the  aceommodalion  of  the  public  and  enlertaiumeul  of  strangers 
and  travelers,"  an<l  the  plain  duty  of  the  court  of  Quarter  Sessions 
under  the  act  of  Assembh  is  to  so  exercise  its  discretion  as  to  "restrain" 
rather  than  increase  the  sale  of  liquors.  Thus,  if  award  has  100 
public  houses  where  only  fifty  are  required  by  the  public  wants,  it 
is  ]ilain  that  fifty  houses  must  be  denied  license,  although  every  one 
of  the  applicants  is  a  worthy  man  and  keeps  a  respectable  house. 
The  denial  of  license  under  such  circumstances  may  seem  arbitrary. 
The  trouble  is  there  are  more  per.sons  whd  want  to  sell  liquor  than 
the  I.,egislature  considered  it  for  the  public  good  to  license  for  that 
purpose.  I  will  not  consume  time  with  an  extended  discussion  of 
the  riglit  of  the  ji.'dges  of  the  court  of  Quarter  Sessions  to  exercise 
their  discretion  in  the  granting  of  licenses.  It  has  been  exercised 
by  that  court  almost  time  out  of  mind,  and  the  power  has  again  and 
again  been  affirmed  by  this  court.  Thi;*  discretion,  however,  is  a 
legal  discretion,  to  be  exercised  wisely  and  not  arbitrarily.  A  judge 
who  refuses  all  applications  unless  for  cau.se  shown  errs  as  widely 
as  the  judge  who  grants  all  applications.  We  have  no  doubt  the 
court  may  in  some  instances  act  of  its  own  knowledge.  The  mere 
appearance  of  an  applicant  for  licen.se,  when  he  comes  to  the  bar 
of  the  court,  may  be  suflicient  to  satisfy  the  judge  that  he  is  not  a 
fit  person  to  keep  a  public  house.  While  the  act  of  deciding  in  such 
cases  is  perhaps  quasi-judici.il,  the  dilTerence  between  granting  or 
withholding  a  license  and  the  decision  of  a  question  between  par- 
ties to  a  private  litigation  is  manifest.  Xcitiier  the  petitioner  nor 
any  other  per.son  in  this  slate  has  any  properly  in  the  right  to  sell 
liquor.     Were  we  to   grant  the  ulierualive  mandamus  now  prayed 


ADDENDA. 


763 


for  it  would  result  only  in  a  return  thereto  by  the  judges  of  the 
court  below  that  they  have  considered  the  application  of  the  peti- 
tioner, and  in  the  exercise  of  the  judicial  discretion  conferred  on 
them  by  law,  liave  rejected  it.  Under  all  our  cases  such  a  return 
•would  be  conclusive  and  it  would  lead  to  no  profitable  result  to 
allow  the  writ.  It  is  therefore  denied."  Eaudenbuach's  Petition, 
21  IF.  N.  a  (Pa.)  432.  Comp.  §  481. 

See  g  169,  p.  233,  note  (J.)— In  Pennsylvania  it  was  held  that  the  refu- 
sal by  a  foreigner,  who  had  arrived  and  become  domicUed  there,  to 
receive  and  provide  for  his  wife  who  followed  him  thither,  was  a 
virtual  turning  her  out  of  doors,  and  gave  the  courts  of  that  state 
jurisdiction,  under  its  laws,  to  decree  her  alimony.  "  Our  statute," 
says  Gibson,  C.  J.,  "is a  municipal  regulation  for  the  protection  of 
the  community  as  well  as  the  wife  .  .  .  It  is  proper,  therefore, 
that  [the  i.usband,]  and  not  the  community,  bear  the  burthen  of  her 
support :"  McDermotCs  App.,  8  Watts  <&  S.  (Pa.)  251,  256. 

p.  235,  note  114. — In  the  absence  of  expressions  to  the  contrary, 

acts  made  causes  of  divorce  by  statute,  are  exclusively  acts  arising 
within  the  state:  McDermotVs  App.,  supra;  Bi'-hop  v.  Bi>'hop,  30  Pa. 
St.  413.  And  where  such  statute  permits  divorces  for  certain 
causes  arising  "  in  any  other  state,"  this  refers  only  to  states  of  tiie 
Union,  not  foreign  countries:  Bishop  w.  Bi-^hop,  rapra.  Nor  can  a 
decree  of  divorce,  pronounced  by  the  court  of  such  state,  umier 
such  a  statute,  have  any  extra-territorial  efleol  upon  a  non-resident 
respondent  who  was  not  brought  within  the  jurisdiction  of  the 
court  by  lawful  service  and  notice :  Love  v.  Love,  10  Phila.  (Pa.) 
453.  A  statute,  however,  declaring,  that,  upon  due  proof  at  the 
return  of  tlie  subpoena,  "  that  the  same  shall  have  been  served  per- 
sonally on  the  said  party  [respondent],  wherever  found,"  etc.,  the 
cause  niiiy  be  brought  to  a  hearing  and  a  deciee  made,  cannot  be 
so  construed  as  to  give  a  state  court  e.Ktru  territorial  power  to  bring 
within  its  juiisdiction  the  person  of  a  citizen  and  resident  of  another 
state  by  a  personal  service  upon  him  outside  of  the  stalo  of  said 
court:  Ralston,  s  App.,  93  Pa.  St.  133.  On  the  other  hand,  the  refu- 
sal of  a  wife  to  accompany  her  husband  to  a  foreign  country  is  not, 
in  itself,  a  wilful  and  malicious  desertion  within  the  meaning  of  a 
statute  allowing  absolute  divorce  for  such  cause  :  Biahop  v.  Bishop, 
supra. 

p.   236,  note  (c).— A  Pennsylvania    statute  which    made    it    a 

misdemeanor  for  the  cashier  of  "  any  bank  "  to  engage  in  any  other 
business,  was  held  to  refer  only  to  cashiers  of  banks  created  under 
and  by  the  virtue  of  the  laws  of  that  state^  and  not  to  cashiers  of 
national  banks  :  Allen  v.  Carter,  (Pa.)  11  Cenir.  Rep.  673.  (See  the 
briefs  in  that  case  for  collection  of  authorities.) 

g  173,  p.  238,  note  120.     See,  in  this  connection,  also  :  Mott  v.  Pa. 

R.  R.  Co.,  30  Pa.  St.,  0,  27,  et  seq.,  to  the  efiect  that  one  Legislature 
may  not  alienate  the  right  of  taxation  so  as  to  bind  future  Legisla- 
tures. 


7C4:  ADDENDA. 

See  §  19G,  p.  265,  note  80.— Add,  to  same  effect,  Ooodall  v.  People.,  (111.)" 
12  West.  Hep.  824.  and  see  State  v.  Duval  Co.,  (Fla.)  3  5o.  7?fp.  193, 
thiit   an    amendment   purporting   to   set   out   all    that   the    act,    as 
amended,  is  designed  to  contain,  repeals  all  of  the  original  act  that 
it  omits. 

g  216,  p.  288,  note  18.— On  the  principle  that  general  legi.slation 

upon  any  subject  must  give  way  to  later  incotisistent  special  legisla- 
tion upon  the  same,  it  was  held,  in  St.  Johnsbury  v.  Thompson, 
(Vt.)  4  N.  F.ivil.  Rep.  509,  that  the  charter  of  an  incorporated  village, 
authorizing  it  to  "regulate"  its  victualing  houses,  repealed  by 
implication,  as  to  it,  the  general  law  on  that  subject. 

§  247,  p.  y28,  note  (a).— The  provision  of  22  &  23  Car.  2.  requiring 

in  "all  actions  of  trespass,  assault  and  battery  and  other  personal 
actions,"  where  the  veidict  is  under  40  shillings  ($5.83^),  the  certi- 
ficate of  the  judge  to  give  plaintiff  full  costs  to  be  made  "  at  the 
trial  of  the  cause."  permits  it  to  be  made  at  any  time  between  ver- 
dict and  final  judgment :  Simonds  v.  Barton,  76  Pa.  St.  434  ;  nor 
does  the  provision  extend  to  any  actions,  save  trespass quare  clausum 
f regit  and  for  assault  and  battery:  Ibid.;  and  where  the  question  of 
the  entry  of  judgment  is  to  be  settled  by  the  same  judges  who  tried 
the  cause,  semble,  that  the  formal  certificate  is  not  required,  but 
costs  may  be  allowed  or  withheld  according  to  the  facts  resting  in 
the  personal  Icnowledge  of  the  judges  :  Knabb  v.  Kaufman,  1  Woodw. 
(Pa.)  325 

?  347,  p.  481,    note  127.— The  term   "costs"   ordinarily  includes 

officers'  fees,  as  well  as  the  party's  own  charge  for  witnesses  :  Belong 
V.  R.  R.  Co.,  1  Woodw.  (Pa.)  195. 

§350.  p.  485,  note  (a). — As  to  whether  natural  gas  is  "freight," 

and  the  conducting  of  it  through  pipes  "  transportation  of  freight," 
see  Carothers  v.  Philad'a  Co.,  (Pa.)  11  Centr.  Rep.  48.  (See  this  ease 
also  as  to  the  effect  of  the  use  of  the  word  "  trade"  in  the  preamble 
on  its  construction  in  the  body  of  the  act.)    Comp.  §  353. 

§  521,  p.  734,  note  125.— In  1874,  the  Legislature  of  Pennsylvania 

passed  an  act  for  the  incorporation  and  regulation  of  cities,  the 
operation  of  which  upon  existing  cities  was,  by  one  of  its  sections, 
confined  to  such  as  might  choose  to  adojjt  it.  These  were  emi)owered 
by  the  act  to  assess  the  cost  of  grading,  etc.,  streets  upon  tlie  prop- 
erties fronting  thereon,  authoiized  to  file  liens  for  the  anxnint  against 
them,  and  to  proceed  to  collect  the  same  by  scire  facias,  etc.  A  lien 
was  filed  under  the  act  by  the  city  of  Reading  in  1880.  In  1887, 
the  Supreme  Court,  in  5crattto«  <ScA.  Disir.  App.,\\ii  Pa.  St.  176, 
having  declared  option  legislation  as  to  cities  special  and  unconsti- 
tutional, a  new  municipal  law  was  enacted  intended  to  cnmply  with 
the  principles  of  general  legislation  announced  by  the  courl.'i.  One 
of  its  sections  provided  tiial  "  all  taxes  levied  or  assessments  made 
in  any  of  said  cities  .  .  .  within  five  years  next  i)rec('ding  the  dale 
of  the  approval  of  this  act,  are  hereby  made  valid  and  said  cities  are 


ADDENDA.  765 

hereby  authorized  and  empowered  to  collect  the  same."  An  appli- 
cation to  strike  off  the  lien  referred  to  was  granted  by  the  court  of 
Common  Picas,  on  tlie  ground  that  the  "  General  Assembly  cannot 
by  an  enabling  act  indirectly  make  that  constitutional  which  directly 
is  prohibited  as  unconstitutional.  Such  legislation  is  just  as  obnox- 
ious as  the  original  Act."  And  the  decision  was  sustained  per  cur.  in 
the  Supreme  Court,  in  Beading  v.  Savage,  decided  April  30,  1888. 


INDEX. 

[TAc  reference  is  to  seciioTis.] 


Abandoned  and  captured  property  act,  96. 
Abandonment,  see  Children,  Turnpike. 

ABATEMENT,  construction  of  act   providing  against,  of  actions,  &c.,  on 
change  of  corporate  authority,  247. 
rule  adopted  from  analogy  with  statute  relating  to,  327. 
act  providing  for  new  action  after,  417  n. 
waiver  of  affidavit  verifying  plea  in,  4i5. 
See  Appeal,  Quash. 
Abduction,  64,  131,  133,  337. 
Abolition,  see  Tax. 
Abortion,  what  is  procuring,  337. 
Absconding  debtors,  436. 
Absence  of  defendant  no  excuse  for  non-service  of  summons,  10. 

editor,  efifect  of,  on  liability  for  libel,  135  71. 
Absent  persons,  who  included,  12. 

Absentees'  estates,  effect  of  act  authorizing  court  to  appoint  trustees  of,  120. 
Absenting  himself  from  service,  129. 
AhsoliUa  seatentia  expositore  non  eget,  4,  507. 
ABSUJRDITY,  presumption  against,  264,  267. 

in  constitutions,  509,  524. 
to  be  avoided,  258  n. 
literal  meaning  leading  to,  rejected,  295. 
not  to  defeat  act,  4. 

literal  construction  followed,  though  productive  of,  11,  23. 
See  Anomalies. 
Abuse  of  power,  presumption  against  construction  permitting,  146,  150. 

construction  to  avoid,  439. 
Accept,  73. 

Acceptance,  power  of,  involved  in  grant  of  power  of  gift,  427. 
Accessories,  375,  417. 

Accidental  omissions,  317.    See  Omissions. 
According  to  his  discretion,  147, 
A.ccount,  155  71. 
Accounts,  51 71. 

Accounts,  jurisdiction  in,  151. 

ACCUSED,  right  of,  to  demand  nature  and  cause  of  accusation,  520. 
public  trial,  524. 
See  Witness. 
Acknowledged  to  have  been  paid,  345. 
ACKNOWLEDGMENT,  necessity  of  seal  to,  10. 

power   to   take,   not  inclusive  of   power  to    take 

proof,  18. 
of  married  woman  by  justice  of  the  peace  inter- 
ested, 114. 
acts  relating  to,  271,  284  ti.,  293,  294. 
conveyance  by  mariied  woman  without,  358  ti. 
See   Attestation,    Intebpbeteb,    Limitations,    Mabbied 
Women,  Power. 

767 


768  LNDEX. 

[The  refcrenoe  is  to  seotlons.] 
Acquired  property,  fi?. 
ACT,  see  Acts,  Bill,  Enactments,  Statute. 

regiilalins;  criminal  proceedings  does  not  extend  to  collateral  issues,  122> 
of  assembly  making  grant  is  grant  by  matter  of  record,  75. 
Action,  74,  77  and  note,  168. 
arising  on  contract,  9S. 
or  proceeding  commenced,  74.  * 
ACTION,  extension  of,  to  new  matter,  carries  incidents,  417. 

constniciion  of  act  permitting  new,  on  certain  conditions,  417  n. 
See  Assault  and   Battery,   Malicious    Prosecution,   Pendiko 
Actions,  Remedies,  Right'of  Action. 
Acts  done  under,  by  virtue  of,  in  pursuance  of.  &c.,  statute,  297. 

legal  when  done  not  rendered  illegal  by  subsequent  statute,  488. 
ACTS,  see  Bills,  Enactments,  Statutes. 
passed  at  same  session,  43  n. 

on  same  day,  see  Same  Day. 
in  or  involving  the  negative,  198,  201. 
of  congress,  see  Congress. 
in  pari  materia,  to  be  compared,  43,  56. 

considered  as  one  body  of  law,  43. 

selection  of  inconsistent  clauses  by  reference  to,  43. 

passed  at  same  session,  43  n.,  45. 

earlier,  43,  44. 

referred  to  for  procedure  and  remedy,  44. 
later,  47. 

expired  or  repealed,  48,  51. 
policy  of  previous,  not  controlling,  53. 
explicit  language  not  controlled  by,  53. 
English,  53  71. 

purpose,  effect,  basis  ami  limitation  of  rule  as  to,  53» 
See  Pari  Materia,  Repealed  Acts. 
not  precisely  in  pari  materi'i,  43  n. 
not  in  pari  materia  not  construed  together,  54. 
upon  similar  subjects,  43  ti.,  32.    See  Analogous  Acts. 
Actual  payment,  442. 

places  of  religious  worship,  95,  356. 
Actually  occupied,  95. 
Actus  Dei,  121. 
Adaptation  of  main  provision  of  act  to  subsequent  changes  of  detail,  112. 

meaning,  see  Reference  .\cts.  Subject  Matter. 
Additional  conditions,  court  cannot  impose,  351. 
Additions  not  to  be  made  by  construction,  IS,  22. 

See  Interpolations,  Percentage. 
Ad  ea  gucB  frequentius  atxidunt  adaptantur  jura,  263  and  note. 
Adequate  security,  524. 

Adjournment  of  case  beyond  time  limited  for  conviction,  9. 
Administer,  337. 
ADMINISTRATOR,  claim  of,  in  own  right  against  distributees,  118. 

act  giving,  power  over  decedent's  land  construed  pros-^ 

peciively,  275. 
time  for  exercising  power  of  sale,  327  and  note. 
See  Executors  and  Administrators. 
Admiralty,  see  Lien. 
court,  156. 
Admixture.%  248  n. 
Adopted  child,  act  enabling,  to  inherit,  not  relief  from  collateral  inheritance 

tax,  126. 
ADOPTION  in  local,  special  or  particular  act,  of  provision  of  general  act,  233» 
of  principle  from  analogy  to  statute,  327. 

previous  construction  by  re-enacttuent,  368. 
construction  by  trauscribinjj  foreign  act,  371. 


INDEX.  769 

[The  reference  is  to  sections.] 
ADOPTION  (continued). 

foreign  statute  before  amendment,  371  n. 

one  act  by  another,  adopts  no  subsequent  changes,  85.     See 

Keference. 
constitutional  provision  from  foreign  constitution,  530. 
adjudicated  provisions  of  former  constitutions,  530. 
construction  does  not  adopt  application,  530. 
Adulterated,  248. 
Adulterated  bread,  see  Bread. 

tobacco,  see  Tobacco. 
ADULTERATION  OF  FOOD,  liability  for,  36. 

construction  of  act  relating  to,  383. 

making,  a  defence,  248. 
to  the  prejudice  of  the  purchaser,  337. 
See  Baker,  Seeds. 
Ad  valorem,  83  n. 

Advancements,  construction  of  act  relating  to,  321. 
Advantage,  presumption  against  construction  permitting,  from  own  wrong,  267, 

268. 
Adverse  estate,  interest  or  lien,  299. 

Adverse  possession,  act  requiring  evidence  of  payment  of  taxes  to  prove,  282. 
right  not  affected  by  act  declaring  forfeiture,  343. 
See  Possession,  Title. 
Adverse  tide,  15. 
Affairs,  521  n. 

Affidavit,  388  and  note,  see  Oath. 
AFFIDAVIT,  power  to  take,  when  implied,  419  n. 

refusal  of  justices  of  peace  to  administer,  136. 

service  of  copy  of,  105  n. 

that  facts  set  forth  are  true,  compliance  with  requirements  o^ 

441  n. 
to  plea  in  abatement,  may  be  waived,  445. 
of  attorney,  when  admissible,  110. 

defence  by  other  than  defendant,  105. 

judgment  for  want  of,  on  failure  to  appear,  142. 
law,  249,  267,  298,  344,  351,  391  n.,  417,  443,  see 
Copy. 
waiver  of  provisions  of,  445. 
Affirmation,  express,  of  duty  otherwise  implied,  386. 
AFFIRMATIVE  ACTS,  implied  negative  in,  199,  209. 

without  expressed  or  implied  negative,  218,  222. 
inter  se,  negative  acts,  what  are,  217. 
After,  391. 
After  born,  80. 
After  the  expiration,  391. 

present  war  is  over,  499. 
they  retm-n,  296. 
Against,  317. 

the  law  of  China,  296. 
Agency,  principle  of,  recognized  in  construction,  105. 

in  payment  of  taxes,  143. 
Agent,  118,  166  n,  see  Travellng  Agent. 

or  Surveyor,  401  n. 
AGENT,  consent  or  affidavit  by,  105. 

criminal  liability  of  principal  for  act  of,  135. 
employment  and  payment  of,  when  impliedly  authorized,  418. 
knowledge  of,  1 17. 
Agreement  in  relation  to  use  and  hire  of  a  ship,  23. 
Agreement  to  convey,  see  Married  Women. 
Alien,  power  of,  to  hold  lands,  63. 

who  is  ineligible  as  jurors,  63  n.  .^^ 

See  Foreigners,  Removal  of  Causes.  ^*^ 


770  INDEX. 

[The  reference  is  to  sections.] 
Alienate,  139. 
Alienation  of  goods,  voluntary,  90. 

property,  strict  construction  of  acts  restraining,  342. 
.1//,  115  n,  167. 

acts  and  parts  of  acts,  265. 

whether  local  or  special,  or  otherwise  inconsistent,  <fec.,  206. 
agreevients  to  pay  attorney  fees  dependent  on  any  condition,  122. 
dejiitition  and  description  of  crimes,  all  Jines,  forfeitures,  penalties  and  incapaci- 
ties, 240. 
Allegiance,  constitutional  provision  requiring  oath  of,  536. 
All  exiiiting  rarilroad  corporations,  112. 
Alley,  adverse  possession  of,  165  n. 
All  inconsistait  acts,  205. 
newspapers,  432. 
officers,  512. 
Allowance  to  widow,  irrespective  of  creditors'  claims,  16. 
Allowances,  o^n. 

All  payments  made  or  which  shall  thereafter  be  made,  284. 
persons,  115,  206,  241. 
pleas,  224,  231. 

poulterers  within  seven  miles.  258. 
proceedings,  125. 
property,  17,  224. 

property  from  which  any  income  or  j'evenue  is  derived,  163  n. 
real  estate,  224  n. 
rights  of  action  secured  by  existing  laws  may  be  prosecuted  in  the  manner  pro- 

vided  by  this  act,  287. 
rights  of  suit  or  prosecution,  &c.,  484. 
Almshouse,  see  Workhouse. 
Already  sustained,  272. 

Alteration,  see  Amendment,  Change,  Reference  Act. 
Always,  81  n. 
Amhassador,  174. 
AMBIGUITY  OF  LANGUAGE,  25,  26. 

causes  of,  26  n. 

construction  permissible  only  in  cases  of,  4. 

See  Absoluta  Sententia. 
unsolved,  24 
AMENDMENT,  change  of  construction  has  effect  of,  1  n. 

construction  harmonizing  with  original  act  preferred,  40. 

reference  to  act  is  to  it  as  modified  by,  44. 

adoption  of  statute  before,  adopts  construction  before,  371  n. 

same  terms  in,  370. 

is  read  into  original  statute,  294. 

statute  after,  construction  as  if  always  there,  294. 

hereafter  in  an,  272  n. 

heretofore  in  an,  272. 

has  no  retroactive  force,  196 n.,  279,  294. 

of  city  charter  held  prospective,  271. 

when  and  when  not  a  repeal,  195,  196. 

incorporating  all  retained,  196  a.nd  Addenda, 

merger  of  original  act  in,  196. 

so  as  to  read,  in  lieu  of,  &c.,  196,  294  and  note,  475.    See 

Merger. 
repeal  of  earlier,  of  act  repealed,  re-enacted,  475  n. 
of  repealed  act,  372. 

constitutional  requirements  as  to  form,  &c.,  inapplicable  to 
implied,  191  n,  524 n. 
of  third  reading,  inapplicable  to, 
508  n. 
effect  of  unconstitutional,  195. 


INDEX.  771 

[The  reference  is  to  sections.] 

AMENDMENT  {continued). 

new  constitution  is,  of  old,  520,  531. 

construction  of  constitution,  by  reference  to  former  provis- 
ions, 517. 
AMENDMENTS,  first  ten  of  U.  S.  constitution,  518  n. 
statutes  permitting,  108,  285,  288. 
exercise  of  discretion  as  to,  of  pleadings,  149,  307. 
Amicable  revival,  see  Judgments. 
Amotion,  see  Removal.  . 

Aviount,  155. 

Amusement,  public  places  of,  47,  340. 
Analogies  and  differences  between  construction  of  statute  and  of  constitution, 

506,  540. 
Analogous  acts,  same  phrases  in,  369. 

causes  construed  as  within  intent  of  statute,  110,  327  n.,  417  n. 
Analogy  with  statute,  adoption  of  principle  from,  327. 

rule  as  to  certain  appeals  adopted  from,  of  acts  as  to  other  appeals, 
420. 
Ancestor  from  whom  estate  came,  80. 

Ancient  lights,  right  to  raise  party-structure  does  not  permit  obstruction  of,  120. 
statutes,  equitable  construction  of,  322,  323. 
construction  by  usage,  359. 
<fe  Co.,  453. 

And  in  penal  statute,  305. 
and  or,  303,  305,  381. 
have  the  casting  vote,  13. 
not  after,  324. 
Animals,  see  Diseases. 
Annexation,  see  Rural  Lands. 
Annexed  thereto,  345. 

Annuities,  construction  of  act  relative  to  sale  of,  77. 
Annulment,  construction  of  act  declaring,  of  contract  by  transfer,  122. 
Anomalies  not  to  control  construction,  23.     See  Absurdity. 
Another  kind,  65. 

Answer,  see  Evidence,  Self-Criminating. 

Antecedents,  rule  as  to  several,  81,  414,  532.    See  Last  Antecedent. 
Any  act,  67. 

acts  .  .  .  to  the  contrary  thereof  notwithstanding,  225. 
intrusted  with  the  possession  of  goods,  118. 
bank,  169  (Addenda), 
bond  as  aforesaid,  381. 

obligation  or  contract  under  seal,  167. 
or  other  specialty,  405. 
borough,  278. 
borrower,  14. 
cose  of  collision,  258. 
chattel  or  valuable  security,  338  n. 
court,  114. 
creditors,  90. 

crime  or  offence  against  the  law  of  China,  29,  296. 
■decision,  125. 
dividend  declared,  142. 
horse,  381. 

cattle  or  other  animal,  299. 
information  or  complaint,  166. 
interest  which  might  from  time  to  time  be  owing,  65, 
justice,  114. 
land,  216. 

law,  usage  or  custom  to  the  contrary  notwithstanding,  225  n.,  374. 
married  female,  115. 
municipal  corporation,  228. 


772  INDEX. 

[The  reference  is  to  sectioas.] 
Any  municipality,  230. 
office- holder,  05. 
of  such  animals,  299. 

the  following  oaiists,  249,  299. 
order,  62. 

other  competent  court,  11-4. 
law,  173. 

matter  or  thing  whatsoever',  410. 
person,  385  n.  • 

slate,  169  {Addenda), 
paper  conlaining  public  news,  &c.,  345. 
part,  248. 

person,  44,  227,  244,  253,  340. 
aggrieved,  125. 

having  the  care  or  charge  of  any  single  patient,  121. 
entitled  to  vole,  334. 
or  corporation,  87. 
persons,  257. 

whatever,  corporate  or  sole,  251. 
persons,  170  n. 
place,  408. 
property,  15. 

public  or  joint  stock,  or  public  security  whatsoever,  335. 
place,  378. 

yuay,  wharf  or  landing  place,  340. 
ri^A<  o/"  common,  35. 
or  remedy,  216. 
sucA  practices,  308. 
8<i7/  or  s<t7/s,  255. 
le.s'seZ  on  </ifi  high  seas,  174. 
tt-tV/,  62. 

woman  who  may  hereafter  be  married  in  this  commonwealth,  321. 
Apology,  constructiou  of  act  requiring  insertion  of,  for  libel,  in  newspaper,  139. 
Apparent,  see  Conflict. 

APPEAL,  construction  of  act  giving,  on  judgment  for  defendant  on  motion  to 
quash,  110  n,  237  71,  417  n. 
acts  giving,  extending  or  preserving  right  of,  108. 
relative  to,  held  prospective,  271,  272. 
retrospective,  288. 
inapplicable  to  pending  cause,  290. 
decision  on,  after  repeal  of  statute,  478. 
who  is  parly  liable  to  pay  costs  on,  77. 
from  one  quarter  session  to  another,  23. 

given  by  act  in  manner  incapable  of  putting  in  operation,  24. 
right  of,  involves  right  of  hearing,  428. 
when  reasonable  time  allowed  for,  420. 
given  to  next  session,  351. 
aflSdavit  of,  to  be  filed  immediately,  247. 
conditions  of,  435. 

implied  reference  between  acts  prescribed,  199,  207. 
notice  of,  441,  442,  443. 

when  excused  by  death  of  appellee,  441. 
when  not,  &c.,  443. 
and  security,  want  of,  waived,  445. 
impossibility  to  perfect,  441,  442,  443. 
when  right  of,  supplied  in  statute  from  constitution,  181. 
right  of,  destroyed  by  declaring  lower  jurisdiction  final,  152 n. 
discretion  of  Orphans'  Court  as  to  security  on,  225. 
construction  of  second  act  relative  to,  220. 
from  judgment  of  justice  of  the  peace,  247. 
given  when  the  sum  adjudged  .  .  .  exceeds,  245. 


INDEX.  773 

[The  reference  is  to  sections.] 
APPEAL  (continued). 

denial  of,  in  landlord  and  tenant  cases,  403. 
effect  of  declaration  of  intent,  not  to,  445. 
See  Executors  and  AoMiNiaTRATORs,  Judgments,  Limitations, 
Notice,  Recognizance,  Review,  Wbit  of  Error. 
Appear  with  his  child,  267. 

APPEARANCE,  wrongful  failure  to  put  in,  not  permissible  to  defeat  remedy, 
267.    See  Affidavit  of  Defence. 
act  prescribing  that  certain  things  shall  be,  398. 
when  waiver  of  defect  in  summons,  445. 
Appendix,  part  of  journals,  33  n. 

Application  of  terra  depends  on  moment  of  adjudication,  90. 
Appointed,  369. 
Officers,  512. 

Appointment  is  not  election,  508  ?i. 

APPRENTICE,  liability  of,  for  absenting  himself  from  service,  134. 
penal  act  as  to,  235. 
indentures  for  binding  of,  269. 

construction  of  act   allowing  justice  of  the   peace   to  dis- 
charge, 422. 
See  Servant. 
Apprenticeship,  deed  of,  10. 
APPROPRIATION  out  of  fund  otherwise  appropriated,  45. 

construction  of  act  making  too  small  an,  265. 
act  may  suspend  other  act,  215  and  note, 
and  revenue  acts  construed  with  previous  acts  in  pari 
materia,  46. 
Arbitrary  procedure,  see  Summary  Jurisdiction. 
ARBITRATION,  act  providing  for,  108,  118,  351. 

defect  in  recognizance  for  appearance  in,  445. 
in  case  of  dispute  as  to  ainount,  155. 
Arbitrators,  award  of,  partly  good  and  partly  bad,  460. 
Army,  75. 

Arrangement  not  to  control  interpretation,  70. 
Arrest,  illegal,  297,  435.     See  Capias. 
Arson,  103. 

Art,  terms  of,  see  Commercial,  Technical. 
Article,  409. 

Articles,  see  Headings. 
As  aforesaid,  514. 
described,  434  n. 
far  as  possible,  260. 
Ashes  and  dirt,  liability  for  failure  to  remove,  469. 
^s  //'  passed  after  this  act.  193. 

said  alteration  and'  amendment  had  not  been  made,  531. 
she  had  continued  unmairied,  422. 
the  act  hud  not  passed,  376. 
this  constitution  had  not  been  adopted,  531. 
ASSAULT  AND  BATTERY,  right  of  action  for,  held  to  be  property,  75  n. 

civil  and  criminal  liability  for,  469. 
by  several,  253. 

effect  of  death  of  victim  of,  upon  exemption 
from  second  prosecution  forsame  offence, 259. 
on  police  ofBcer  in  citizen's  clothes,  133. 
Assemble  and  meet  together,  62. 
Assertion  of  right,  act  done  in  the,  131. 
Assessed,  126. 

ASSESSMENT,  construction  of  act  requiring  assessors  to  sit  to  revise,  108  n. 
mode  of,  not  saved  by  saving  of  right  or  remedy,  216. 
acts  legalizing,  292,  293,  521  [Addenda). 
erroneous,  297. 


7^4  INDEX. 

[The  reference  is  to  sections-] 
ASSESSMENT  {continued). 

roll,  return  and  deposit  of,  435,  436. 
noiice  of,  43(3. 
See  Exemption,  Municipal  Improvemknts,  Municipalities^ 
Stockholders,  Taxes,  Vote. 
Asxign,  462. 
Assignee,  80. 

Assignees,  act  allowing,  to  sue,  held  relrcspective,  287. 
Assignments,  75. 

ASSIGNMENTS  for  benefit  of  creditors,  construction  of  act  forbidding  prefer- 
ences in,  124,  138.     See  Compositions,  Preferences. 
of  labor  claims,  350. 
mail  contracts,  449. 

government  contracts,  450.     See  Annulment. 
See  Collateral  Inheritance  Tax. 
equitable,  see  Bill  ok  Sale. 
Assistance,  writ  of,  with  fieri  fdcias  for  costs,  is  process,  74. 
Associated  words  and  clauses  in  constitution,  532. 
ASSOCIATION  of  words,  effect  on  construction,  396,  416,  532. 
restricting  ettect  of,  396. 
extending  effect  of,  404. 
As  substantial  justice  shall  require,  147. 
Assure,  73. 

As  the  court  thinks  right,  307. 
Asylum,  see  Lunatic. 

At  any  time  after  return  day  and  ten  days'  service  of  the  writ,  46. 
law,  77. 

or  in  equity,  159. 
least,  391. 

two  days,  432  n. 
such  time  or  times  as  they  may  deem  expedient,  142. 
the  date  of  passage,  292,  498  n. 

end  lhere(f,  348. 
their  just  and  proper  discretion,  428. 
the  office,  301. 

time  of  the  application,  247. 
trial,  247  (Addenda),  388. 
ATTACHMENTS,  strict  construction  of  acts  authorizing,  262  n,  344,  351. 
restricted  to  liquidated  claims,  98. 
act  authorizing,  does  not  create  new  liability,  344  n. 
money  in  hands  of  public  official  not  liable  to,  251. 

municipal   corporation   not   liable    to, 
165  71,  251. 
against  foreign  corporations,  act  giving,  held  retrospect- 
ive, 287. 
to  compel  payment  of  master's  fee,  14. 
of  witnesses,  refusal  of  court  to  grant,  125. 
to  testify,  419  n. 

of   wages  for  boarding  debt,  construction  of  act  permit- 
ting, 126. 
no  waiver  of  act  forbidding,  447. 
for  contempt,  not  imprisonment  for  debt,  74.     See  CON- 

te.mpt. 
against  married  women,  123. 

act  relating  to  right  of  creditors  to  intervene  in,  see  Cred- 
itors. 
foreign,  in  Pennsylvania,  limited  to  claims  ex  contractu,  114. 
not  within  aflidavit  of  defence  laws,  249. 
Attaint,  see  Jurors. 
Attendance  in  court,  or  before  any  official  pursunnl  to  law,  61. 


INDEX.  775 

[The  reference  is  to  sections.] 
ATTESTATION,   requisites   of,   where   required   to   slate    that    instrument 
explained,  20. 
of  wills,  62. 

provision  relating  to,  held  directory,  437. 
estoppel  against  claiming  advantage  from  defect  in,  448. 
ATTORNEY,  affidavit  by,  when  admissible,  110. 

efl'ect  of  advice  of,  to  apprentice  that  indenture  void,  134. 

act  making  bills  of,  taxable,  &c.,  applicable  to  pending  cause, 

286. 
not  taxable  as  tradesman,  407. 

remedies  against  unqualified  persons  acting  as,  467. 
strict  construction  of  act  prohibiting,  from  purchasing,  341. 
See  Married  Women,  Notice  of  Appeal,  Solicitor. 
Attorney -fee,  ouster  of  justice  peace  jurisdiction,  by  inclusion  of,  in  note,  152  n. 

act  limiting  amount  of,  held  retrospective,  287. 
Attorney-General,  see  Departmental  Usage. 
Attorney's  commission,  226  n.     See  Justice  of  the  Peace. 
Attorneys,  38. 
Auctioneer,  contract  signed  by,  348. 

selling  partly  out  of  his  proper  district,  460. 
Auctions,  269. 

Auditor-General,  see  Change  op  name  of  Corporation. 
Auditors  or  Controllers,  532. 
Author,  115. 
Author,  consent  of,  by  agent,  105. 

right  of  action  of,  for  printing  works  without  consent,  469. 
Author  of  any  work,  176. 

printer  and  publisher,  304. 
Authorized  and  empowered,  306. 

to  adjust  and  audit,  306. 
Award,  see  Arbitrators. 

Bachelor,  see  Householder. 

Baggage,  included  in  goods  or  merchandise  127.     See  LuGGAGE. 

Bail,  see  Bonds,  Capias,  Executors  and  Administrators. 

Baker,  liability  for  sale  of  impure  bread,  135. 

Ballot,  constitutional  requirement  that  elections  shall  be  by,  520, 

boxes,  provision  as  to  arrangement,  &c.,  of,  438. 
BANK,  discounting  note,  is  assignee,  80. 

what  is  place  where,  is  located,  94  n. 
effect  of  prohibition  against  loan  to  director  by,  137  n. 
in  which  government  is  stockholder,  164. 
special  act  relative  to,  not  repealed  by  general  act,  229. 
See  Banks,  Cashier,  National  Banks. 
Banker,  whether,  a  person  acting  in  a.  fiduciary  capacity,  90. 
Bankers  and  brokers,  act  requiring  returns  by,  4l6. 
Banking  institution,  illegal  contract  for,  452. 
Banking  or  discounting  privileges,  532. 
Bankrupt,  earnings  by  labor  of,  248. 

real  estate  of,  see  Real  Estate. 
Bankruptcy,  who  are  creditors  in  case  of,  9D. 
law,  219,  276,  296,  303,  340,  417. 
BANKS,  act  forbidding,  to  pay  interest  on  deposits,  279. 
reducing  rate  of  interest  allowed  to,  279. 
authorizing  erection  of  certain  number  of,  353. 
See  Bank  Cashier,  National  Banks. 
Bargain  and  sale,  power  of,  included  in  power  to  grant,  79. 
Barratry,  136. 
Barriers,  see  Railroads. 
Barter,  see  Municipalities;  Sell. 


776  INDEX. 

[TLe  refereucc  is  to  sections.] 
BASTARD,  settlement  of,  141. 

legislature  cannot  make,  anything  but  bastard,  171. 
act  legitimatizing,  by  subsequent  marriage  of  parentis,  171. 
See  Putative  Father. 
Bastardize,  see  Married  Women. 
Bastardy  proceedings,  443. 

evidence  in,  443. 
Bay  windows,  see  Municipalities. 
Beef,  365. 
Beer,  see  LiQUOit. 
Before,  391. 
Being  an  alderman  ur  councillor,  330. 

7narried,  387. 
Be  in  possession  of  game  after  the  last  day,  296. 

it  enacted,  536. 
BELIEF,  mere,  as  a  defence,  131  n. 
erroneous,  in  a  fact,  132. 
wiien  reasonableness  of,  imniaterial,  297. 
Bench,  selling  beer  to  be  drunk  outside  of  shop  on,  144. 
Benefices,  construction  of  12  Car.  2,  c.  17,  concerning,  116. 
Beneficial  construction,  103-112.    See  Liberal  Construction. 
Benefits,  acts  conferring,  prospective,  278. 
Bequests  to  charities,  strict  construction  of  act  regulating,  342. 
Betting,  see  Waoers. 
Beyond  the  seas,  20,  78,  296. 
Bicycles,  54,  335. 
Bid,  at  auction  declared  void,  269. 

act  not  construed  to  cut  off  accepted,  275. 
Bigamy,  133,  169. 

BILL  (see  .\mendment.  Enactment,  Statute),  requirement  of  three  read- 
ings, 508,  536. 
introduction  of,  521  n. 

provisions  as  to  subject,  title,  &c.,  524,  536,  and  note, 
style  of,  536. 

and  resolutions  of  legislature,  signing  of,  536. 
Billiard  hall,  liability  of  keeper  of,  for  permitting  minor  in,  132  n. 
Bill  of  lading,  exception  in,  from  liability  for  breakage,  &c.,  260  ri. 

rights,  516. 
Bill  of  sale,  139. 
Bill  of  exception,  see  Attachment,  Continuance,  Discretion,  New  Trial, 

Writ  op  Error. 
BILLS  OF  SALE,  affidavit  when  required,  10. 

act  relating  to  attestation  of,  20.  ^ 

requiring  registration  of,  137,  139,  274. 
what  not  evasion  of,  144. 
agreements  for,  when  to  be  registered,  139. 
transferring  ships  by  way  of  mortgage,  460. 
Blank  notes,  418  n. 
votes,  441  71. 
Blasphemy,  236,  494. 
Boarding  debts,  see  Attachment. 

Board  of  iieallh,  women  to  be  appointed  in,  in  Massachusetts,  385  n. 
Boat,  what,  is  a  ship,  103. 
Boliea,  83. 

Bona  fide,  see  Innocent,  Usury. 

Bona  fides  in  assignment,  &c.,  of  insurance  policy,  14. 
Bonnm  partem,  words  construed  in,  385. 
Bond,  381,  383. 

or  obligation,  383. 
BOND  of  tax-collector,  with  one  surety,  where  act  requires  two,  218. 


INDEX.  777 

[The  reference  i«  lo  sections.] 
BOND  {continued). 

note  not  bad  because  act  requires,  218. 

act  prescribing,  to  be  taken  by  surrogate,  437.  no   o,  ,    r«o 

BONDS,  construction  of  act  autiiorizing,  in  aid  of  railroads,  &c.,  98,  Zli,  OV^. 
'  not  in  the  penalty  payable  and  conditioned  as  prescribedjy  law,  110. 
act  relative  to  suits  on  official,  held  retrospective,  287. 
statute  of  limitation  in  suits  upon  official,  167. 

bail,  164. 
power  of  municipality  to  give,  418  n.  ■ 

married  woman  to  give,  see  Married  Women. 
act  requiring  certified  signature,  &c.,  to  municipal,  437. 
of  directors,  provision  as  to  form  of,  directory,  438. 
construction  of  act  giving  counties  right  to  issue,  214,  502. 
foreign  held,  169  n. 
See  Confederate     Bonds,     Margins,     Municipality,     Official 
Bonds  .      .        , 

Book  entries,  case  involving,  not  necessarily  one  requiring  the  examination  of 

a  long  account,  lo5. 
Boom  companies,  249. 
Booth,  held  not  included  in  tenement,  406. 

BOROUGH,  liability  of,  for  payment  of  damages  assessed  for  opening  street, 
126. 
construction  of  act  empowering  courts  to  cliange  charter  of,  212. 
notice  of  application  for  charter  of,  see    Notice,  ReligioU3 
Newspaper. 
See  Fire  Limits,  Ordinance. 
BORROW,  right  to,  involves  right  to  give  obligation  for  debt,  422  ?i. 
power  of  municipality  to,  418  71. 

married  woman  to,  see  Married  Womeot. 
Borrower,  when  estopped  from  defence  of  usury,  448. 
Bottoms,  contract  to  ship  in  foreign,  452. 
Boundaries,   provisions  of  act  as  to  fixing  of,  by  commissioners,  4o5.     bee 

City,  Municipality. 
BOUiSTY,  construction  of  acts  relating  to,  109,  275,  436. 

loans  to  pay,  79. 
legalizing  action  of  township  as   to  paying, 
122. 
Branch  railroad,  79. 

Breach  of  duty  or  of  contract,  401 .     See  Duty. 

Breach  of  promise  of  marriage,  when  not  included  in  action  on  contract,  98. 
Bread,  sale  by  servant  of  adulterated,  135. 
Bread  usually  sold  as  French  or  fancy  bread,  85. 
Break  from  prison,  129. 
Breaking,  337. 
Break  or  enter,  303. 
Bribery,  338. 

Bricks,  act  regulating  dimensions  of,  455. 
Bridge,  73,  79,  349. 

structures,  79. 
BRIDGE,  what  involved  in  grant  of  power  to  build,  418. 

charter  requiring  corporation  to,  roads,  means  existing  roads,  85. 
See  Drawbridge,   Navigation,   Notice,    Repair,  Toll-Bridge, 
Tolls. 
British  ship,  116.  d     >     et 

Broker,  47.    See  Bankers    and    Brokers,    Pawnbroker,    Beat   Estate 

Broker. 
Brokers,  unqualified,  456  and  note. 
Brought  or  exhibited,  416  n. 
Buggy  may  be  wagon,  103. 
Building,  140,  396,  405  n.,  406,  408. 
Building,  act  permitting  demolition  of,  428. 


778  INDKX. 

[The  reference  is  to  section*  ] 

BUILDING  ASSOCIATIONS,  when  not  suvuujs  iuMilution,,  44,  396. 

persons  may  become  members  of,  merely  to- 

loan,  141. 
implied  repeal  between  acts  relating  to,  201. 
fines  in,  352.    See  Fines. 
transfer  of  stock  in,  438. 
not  within  consiitiitionai  provision  as  to  cor- 
porations   laith    banking    or    discounting 
privileges,  532. 
Building  line,  act  relative  to,  36. 
Jiuildingx,  396. 

Bulk  windows,  see  Municipalities. 
Bull,  not  included  in  ox,  cow,  heifer  or  other  cattle,  412. 
Burdens,  strict  construction  of  acts  imposing,  345,  356. 

conferring  exemptions  from  common,  356. 
Burglary,  acts  relating  to,  54,  337,  and  note,  405  n. 
Burying  vault  not  a  building,  erection  or  inclosure,  405  n. 
Business,  521  n. 

trade  or  manufacture,  406. 
Butcher  raising  cattle  slaughtered  on  his  farm  not  n  farmer,  98. 
Butter,  act  regulating  sale  of,  455. 

Buyer,  act  authorizing  seizure  of  light  and  unjust  scales,  &c.,  means  as  to,  119. 
Buy,  sell  or  receive  from,  299. 
By,  391. 
By-laws  (.see  Corporation,  Ordinance,  Power),  power  to  make  needful,  418. 

partly  good  and  partly  bad,  460. 
By  .  .  .  insertions  .  .  .  in  successive  weeks,  389. 
sample,  or  soliciling  or  procuring  orders,  174  n. 
the  court  or  judge,  105. 
virtue  of,  297. 

the  authority  of  any  other  law,  173. 

Cabman  trespassing  on  railroad  company's  property,  134. 

Calls,  see  Corporations,  Stockholders. 

Campaign  fund,  contract  to  contribute  to,  460. 

Can,  299. 

Canal  boat,  when  a  vessel,  103. 

Can  be  removed,  249. 

CANDIDATE,  e.xclusion  of,  from  polling  place,  .36. 

efTect  of  voting  for  ineligible,  1 14  and  Addenda. 

acting  as  returning  officer  ineligible,  114. 

contract  of,  to  contribute  to  campaign  fund,  460. 

suit  by,  against  election  officer,  469. 
See  Election. 
Capias  ad  respondendum  not  issuable  against  married  woman  liable  for  torts,  123. 
satisfaciendum  not  issuable  against  married  woman  liable,  &c.     Vocht 

V.  Kuklence  (Pa.),  11    Cenlr.  Rep.  767. 
effect  of  destruction  of   bail's  right   to  surrender  principal   taken 
under,  461. 
Capital  stock,  142,  356  n.  * 

Captions,  69,  70,  512.     See  Headings. 
Capture,  79,  337  n.     See  Prize. 
Carriage,  54,  375,  378.     See  Vehicle. 
Carrier,  construction  of  act  relating  to  liability  of,  260,  301.     See  BlXL  OF 

Lading,  Common  Carrier. 
Carries  on  his  business,  401. 

Carrying  concealed  weapons,  see  Concealed  Weapons. 
Cars,  see  Train  of  Cars. 
Cases  provided  for,  226  n. 

Cashier,  act  relating  to,  of  any  bank,  169  (Addenda.) 
Cast  away  or  destroy,  402. 
Casting  vote,  13. 


INDEX.  779 

[Tbe  reference  ie  to  sections.] 
Casus  omissus,  18,  '22.  336.     See  Omlssion. 
Cattle,  (see  Bull,  Killing,  Other  Cattle,  Torn  Loose),  act  relating  to 

transportation  of,  407. 
Causa  causans,  473. 

sine  qua  non,  473. 
CAUSE  OF  ACTION,  not  created  by  own  wrong,  267  n. 
when  saved,  485. 

unaffected  by  repeul,  481,  483. 
See  Right  of  Action,  Limitations. 
enactment,  27,  28. 
Cause  to  be  taken,  337. 

Cemetery,  prohibition  against  using,  within  one  hundred  yards  of  dwelling,  249  n. 
Census,  changes  in  popuhition  as  shown  by,  not  judicially  noticed,  261  n. 
Certainty  of  meaning,  effect  of,  4. 

statutes  devoid  of,  24. 
Certificate,  see  Marriage,  Registry. 

CERTIORARI,  effect  of  prohibition  of  removal  of  conviction  by,  11. 
increase  of  jurisdiction  not  restoration  of,  112. 
to  Quarter  Sessicms,  when  not  taken  away  from  Supreme  Court, 

151,  152,  522  and  note, 
prohibition    of,    inapplicable    where   jurisdiction    overstep- 
ped, 152. 
prohibition  of,  inapplicable  where  jurisdiction  wrongly  as- 
sumed, 385  n. 
court  improperly  consti- 
tuted, 152. 
in  cases  of  fraud,  152. 
to  suits  under  ordinances,  152. 
by  state  court  to  officer  proceeding  under  act  of  congress, 

152  71. 
void  proceedings  treated  as  voidable  for  purpose  of  review 

on,  152  n. 
when  excluded  by  reference,  153. 
to  new  proceedings,  154. 

acts  taking,  away,  inapplicable  to  government,  164. 
effect  of  making  judgment  of  inferior  court  final  on,  420. 
when  impliedly  taken  away  in  contested  election  cases,  420  n. 
See  Review. 
Oessante  ratione  cessat  lex,  62. 
Challenge,  act  giving  right  of  peremptory,  held  retrospective,  288. 

See  Codefendants,  Dwelling,  Jurors. 
Chambers,  see  Householder. 
Chancery,  see  Equity,  Evidence. 
CHANGE  of  ttircumstauces,  effect  on  construction,  85  n. 

date  of  election  does  not  change  liability  for  expenses,  112. 

publication  of  ne.wspaper,  389. 
degree  of  punishment,  239. 

extent  of  jurisdiction  does  not  change  finality  of  judgment,  112. 
grade,  damages  for,  434. 
language  (see  Omissions),  378-384. 
when  insignificant,  381. 

change  of  intent,  51,  206,  382. 
in  constitutions,  531. 
law,  presumption  against  needless,  by  statute,  113-128. 

constitution,  520. 
locality  and  incidents  of  punishments,  237. 
name  of  corporation,  notice  of,  to  auditor-general,  17.      See 

Corporation. 
policy  not  presumed  from  new  constitution,  520. 
quality  and  incidents  of  offence,  238. 
venue,  act  relating  to,  held  j>rosa)ective,  289  n. 


780  INDEX. 

[The  reference  is  to  sections.] 
OHANGE  (continued). 

of  venue,  effect  on,  of  saving  of  riglu  to  proceed,  487. 
right  of  Supreme  Court  to  order,  522. 
Clianges  in  an  act  adopted  by  another,  do  not  affect  latter,  85. 
Chapter,  see  Headings,  Revision. 
Charge,  10,  405. 

Charge,  when  included  in  opinion,  108  n. 
Charities,  construction  of  act  requiring  devise,  &c.,  to,  one  calendar  month 

before  death,  80.    See  Bequest,  Mortmain. 
Charter-party,  guarantee  for  due  performance  of,  not  within  stamp  laws,  345. 
CHARTEKS,  construction  of,  most  strongly  against  grantees,  55  and  note, 
promoters  regarded  as  framers  of,  55  n. 
of  consolidated  companies  not  construed  together,  55. 
general  act  read  into  special,  56. 

to  be  construed  so  as  to  accord  with  subsequent  legislation,  354. 
reservation  of  power  to  alter,  involves  power  of  additional  taxa- 
tion, 417  n. 
See  Boroughs,  Corporations,  Municipal  Corporations,  Ordi- 
nance, Repeal. 
■Chattel  or  valuable  security,  338  n. 
•Checks,  418  n. 

postdated,  418  n. 
Children,  77.  80,  321,  337. 
CHILDREN  under  seven  years  not  guilty  of  felony,  130. 

born  out  of  lawful  wedlock,  cannot  be  laivfully  begotten,  171. 
act  relating  to  abandonment  of,  3oI. 
See  Abduction,  Abandonment,  Maintenance,  Poor  District, 
Schools. 
Chimneys,  constiuciion  of  acts  relating  to,  218. 
Choses  in  action,  when  property,  75  n. 

Churches,  meeting-houses  and  other  regular  places  of  staled  worship,  356. 
Circuit  Courts,  construction  of  act  relative  to,  122. 
See  Removal  of  Causes,  Supreme  Court. 
Circumstances,  see  External  Circumstances. 
■Circumvention,  see  Evasion. 
Citation,  see  Personal  Service. 
Cities,  37. 
Citizens,  159. 

CITY,  act  aiming  at  regulation  and  regular  supply  of  a  great,  108. 
effect  of  extension  of  boundaries  of,  122,  420. 
•See  Councils,  Municipalities,  Ordinances. 
City  controller,  532  n. 
Civil  case,  507  n. 

Civil  engineer  not  a  laborer,  99  and  note. 
Civil  officers,  512. 

Claim  of  right,  see  Assertion  of  Right. 
Clandestine  marriage,  see  Putative  Father. 

removal  of  goods,  see  Fraudulent,  Removal. 
CLASSIFICATION  OF  CITIES,  521  n. 

corporations  for  taxation,  519  n. 
street  railways,  521  n. 
effect  of  doubtful,  in  revised  acts,  346. 
Class  legislation,  strict  construction  of,  350. 
Clause  (see  Word),  effect  to  be  given  to  every,  23. 
Clauses,  transposition  of,  in  construction,  13,  318,  507  n.     See  TRANSPOSITION. 

repugnant.,  in  same  act,  183-186. 
Cleaning  women,  act  relative  to,  112  n. 
Clear  days,  391. 

yearly  v<due,  54. 
Clerical  errors,  correction  of,  264,  319.     See  OanssiONS. 
Clerical  or  other  errors,  407. 


INDEX.  781 

[The  reference  is  to  sections.] 

Clerk  of  court,  impossibility  arising  from  act  of,  442. 

Coal  company,  139,  300. 

Coal  mines,  396. 

Coals,  act  regulating  sale  of,  455. 

CODE,  whole,  treated  as  one  body  of  law,  40. 

construction  of,  as  changing  common  law,  127, 

repeal  of  special  municipal  act  by,  notwithstanding  saving  clause,  230. 
See  Revised  Statutes,  Revision. 
Codefendants,  all,  are  one  party,  for  challenging  jurors,  77. 
Codicil,  see  Republication. 

Cognate  acts,  construction  of,  365,  366.     See  Analogous  Acts. 
Coke's  rules,  27,  and  note,  29. 

COLIiATERAL  inheritance  tax  laws,  attempts  at  evasion  of,  140. 

trust  deed  to  evade,  460  n. 
what  not  evasion  of,  144. 

subject    to,  174.     See  Adopted 
Child. 
construction  of,  as  to  foreigners,  174. 
prospective,  276. 

act  exempting  husband  from,  507  n. 
inquiry  into  corporate  existence,  114. 
validity  of  tax  rate,  246. 
issues,  see  Act  Regulating  Criminal  Proceedings. 
Collecting  officers,  see  Judgments. 
Collision,  258.    See  Injuries. 

Collocation  of  words  changed  to  accomplish  meaning,  295,  318.    See  Arrange- 
ment, Transposition. 
Colonel,  80. 

Colonies,  170.     See  Country. 
Comity  of  nations,  see  International  Law. 
COMMENCEMENT  of  constitution,  539. 

repeal,  489.    See  Postponement. 
statutes,  496-500. 

postponement  of,  499. 

provision  requiringdesignation  oftimeof,  437. 
acts  speak  as  from  time  of,  489,  and  note. 
COMMERCIAL  LAW,  statutes  of  states  not  rule  of  decision  in  federal  courts 
upon  questions  of,  122. 
construction  of  act  changing,  128, 
terms,  83. 

usages,  see  Merchants. 
Commissions  (see  Attorney,    Municipality)  to  purchaser   of  municipal 
bonds,  139. 
to  seller  of  municipal  bonds,  418. 
Commitment,  construction  of  act  authorizing,  on  failure  to  obey  orders  to  pay, 
428. 
not  under  seal,  435. 
Committees,  proceedings  and  reports  of,  32,  68, 

delegation  of  powers  to,  352  n.,  3'53. 
Commodity,  75  n. 

Oiintnon,  tenant  in,  see  Married  Women. 
COMMON  burdens,  see  Burdens. 

carriers,  exemption  from  liability  unless  valuation  declared  and 

insured,  12.    See  Carriers,  Railroads. 
informer,  repeal  of  act  taking  away  right  of,  to  sue,  475,     Se« 

Qui  tam. 
suit  by,  422. 
Common  law,  3  n. 

COMMON    LAW,  legislature  presumed  to  know,  127  n. 
meaning  of  words,  3,  75,  127,  405  n. 


782  INDKX. 

[The  reference  is  to  sectioiia.] 

COMMON  LAW  {continued). 

meaning  of  words  presumed   to  be  understood  by  legis- 
lature, 3. 
rules  in  construction  of  acts  of  congress,  3. 
statutes  to  be  construed  by,  127. 
construction  of  acts  in  affirmation  of,  127. 
doctrine  of  strict  construction  of   acts  in   derogation  of, 

127,  128. 
presumption  against  alteration  of,  127,  128,  341. 
rights,  construction  of  act  interfering  with,  127,  341,  343. 
statutory  regulation    for  exercise  of,   not   strictly 

construed,  350. 
remedy  given  bv  statute  for  enforcing,  cumulative, 
470. 
construction  of  statute  intended  as  a  substitute  for,  127, 

236  n. 
implied  repeal  of,  204. 
controlled  by  statute,  361. 

superseded  by  act  revising  whole  subject,  236  n. 
acts  construed  cumulative  to,  204  n.,  470. 
remedies,  when  not  ousted,  153  71.,  466. 
redress,  when  impliedly  given,  464. 
incidents  to  new  remedies,  154. 
remedy,  when  ousted,  433  7i. 
immemorial  usage  may  control,  361, 
revived  by  repeal,  suspension,  expiration  of  statute,  475. 
influence  of,  in  construction  of  constitution,  620  n. 
See  Private  Act. 
Common  Pleas  (see  Accounts),  jurisdiction  of,  in  partition,  153. 
Common  schools,  see  Schools. 
Common  scold,  494,  495  ti. 
Commonwealth,  see  Government,  State. 
Compensation,  see  Priority. 
Competency,  see  Witnesses. 
Competent  to  dispose,  Ac,  73. 
Complaint,  74. 

Compositions  with  creditors,  effect  on,  of  act  forbidding  preferences,  124. 
Compromise,  not  a  recovery  or  preservation,  12. 
COMPUTATION  of  distances,  395. 
time,  390,  394. 

when  Sunday  included  and  excluded,  393. 
under  constitution,  534. 
Concealed  weapons,  act  relative  »o  carrying  of,  16,  384. 
Concealment,  see  Fraudulent  Conckalment,   Limitations. 
Concurrent  jurisdiction,  see  Equity,  Jurisdiction,  Retrospective. 
Condemnation  of  land,  waiver  of  right  to  apply  to  court  for,  444. 
CONDITION  (see  Impossibilities)  precedent,  when  requirement  is,  431,  432. 

act  establishing,  is  imperative, 

431. 

court   cannot    impose    additional,    to   condition    prescribed    by 

statute,  351. 
prescribed  by  constitution  cannot  be  added  to  by  legislature, 

533. 
unexpressed,  supplied  by  reference  to  object  of  enactment,  102. 
Confederate  bonds,  contract  as  to,  538. 
Confirmation,  see  Conveyance,  Title. 
Confiscation,  strict  construction  of  act  working,  343. 
CONFLICT  of  laws,  169. 

between  parts  of  statute  to  be  avoided  in  construction,  35,  40. 

constiiution  to  be  avoided  in  construction,  515. 


INDEX.  783 

[The  reference  is  to  sections.] 

•CONFLICT  (continued). 

between  general  and  subsidiary  provisions,  111. 
acts,  merely  ai)|)arent,  211,  214. 
special  and  general  act,  merely  apparent,  226. 
degree  of,  between  acts  necessary  lor  implied  repeal,  210. 
See  Implied  Kepkal,  Inconsistency,  Repugnancy. 
CONFLICTING  acts,  as  to  liabilities  imposed,  207. 

of  same  session,  main  intent  to  be  effectuated,  210  n. 
powers,  acts  granting,  207. 
riglits,  ads  conferring,  207. 
Congregation,  offence  of  disturbing,  253. 
Congress,  acts  construed  by  common  law,  3. 
powers  of,  under  constitution,  535. 
See  Legislature. 
Conjecture,  no  room  for,  in  construction,  72. 
Connecticut  titles  in  Pennsylvania,  450. 
Connection,  79.     See  Railroads. 
Consent,  see  Marriage. 
Consequences  impliedly  sanctioned  by  act,  417.     See  Incidents. 

eflect  of,  on  construction,  4,  6,  23.    See  Anomalies. 
Consideration,  illegal,  451.     See  Contract. 
Consistency,  see  Inconsistency. 

Consolidation  of  corporations,  effect  of,  on  construction  of  charters,  55. 
Constable,  247  and  note. 

■CONSTITUTION   (see    Federal    Constitution)    and    statute    construed 
together,  57,  178,  181. 
construction  of  statute  in  conformity  with,  imperative,  178. 

not  to  distort  lan- 
guage, 180. 
provisions  of  subsequent,  read  into  prior  statute,  181. 
in  what  sense  a  law,  506,  522  »i. 
the  people  regarded  as  framers  and  makers  of,  507,  509, 

510  and  note,  511. 
amendment,  construction  of,  by  reference  to  former  pro- 
vision, 517.    See  New  Constitution. 
associated  words  in,  532. 
bill  of  rights  in,  516. 
change  of  language  in,  531. 
commencement  of,  539. 

common  law,  influence  of,  in  construction  of,  520  n. 
computation  of  time  under,  534. 

construction  of,  and  of  statutes,  analogy  and  difference 
between,  506,  540. 
fundamental  principles  of,  506,  507,  526. 
literal,  507,  508. 

effect  of  external  circumstances,  509,  510. 
reference  to  history  and  mischief, 
509,  518. 
context,  514,  516. 
as  a  whole,  515. 

to  harmonize  different  parts,  515. 
reference  to  superseding  and  succeeding 
provisions  in,  517. 
federal  constitution,  treaties, 
laws,  &c.,  523. 
liberal,  526. 
contracts  and  enactments  in  violation  of,  538. 
•debates  in  convention  th^it  framed,  510. 
definitions  and  qualifications  in,  not  added  to  or  varied,  533. 
-directory  provisions  in,  513  n.,  536. 


784  INDEX. 

[The  reference  is  to  sections.] 
CONSTITUTION  {aminued). 


enumeration  in,  effect  as  to  things  not  enumerated,  513,  533. 
estoppel  against  claiming  benefit  of  provision  in,  537. 
expansion  and   restriction  by  reference  to  subject  matter 

and  object,  518,  519. 
expressio  unius,  &c.,  in  construction  of,  533. 
extra-territorial  oijcration  of,  523  and  note, 
general  and  particular  provisions  in,  515  ?t. 
generality  of  language  of,  506,  514,  518. 
government  bouml  by,  522.  " 

hardship   and   inconvenience,   effect   in   construction   of^ 

5U7,  524. 
implications  and  intendments  in,  535. 
implied  powers  under,  535. 

irreconcilable  repugnance  between  parts  of,  515  n.,  51 6. 
language  used  in,  force  of,  507. 

to  be  read  in  grammatical  sense,  507. 
language,  plain,  permits  no  interpretation,  507. 

modification  and  transposition  of,  5o7,  notes  7, 19. 
multiplicity  of  words  in,  531. 
new,  comparison  of,  with  old,  517. 

is  but  amend(nent  of  old,  520,  531. 
not  repeal  of  existing  laws,  520. 
preamble  of,  effect  of,  511. 

presumption  against  intention  of  statute  to  violate,  178-181. 
needless  change  of  law  by,  520. 
evasion  of,  521. 
ouster  of  jurisdiction  by,  522, 
excess  of  slate  powers,  523. 
violation  of  federal  constitution  and 

laws,  523. 
injustice,  absurdity,  inconvenience,  509 

524. 
retroaction,  525. 
provisions  of,  transcribed  from  other  states,  530. 

adoption  of  construction  does  not  adopt  ap- 
plication, 530. 
adjudicated,  of  former,  530. 
effect  of,  on  construction  of  transcribed  stat- 
utes, 371. 
not  construed  as  useless  repetition  of  exist- 
ing rule,  520. 
in  pari  materia,  acts  construed  together  with, 

57,  178-181. 
as  to  assessment  and  payment  of  tai,  143  n. 
exe!!i[)lary  damages,  218  n. 
special  legislation,  507  n,  521,  and  note, 
reading  bills  three  times,  508,  536. 
person^il  liability  of  stockholder,  508. 
disqualification  of  representatives  and 
senators  for  appointment,  508  n. 
compensation   for  property  injured  or 

destroyed,  518,  519,  520. 
right  of  voting,  519. 
cumulative  voting,  540. 
coiporations,  518,  519,  520,  524,  532. 
elections  by  ballot,  520. 
intersections  of  railroads,  520. 
that  accused  may  demand  nature  and  cause  of 
accusation,  520. 


indf:x.  785 

[The  reference  is  to  sections.] 

CONSTITUTION  {continued). 

provisions  that  accused  shall  have  public  trial,  524. 

be  confronted  with  witnesses,  520. 
in  derogation  of  common  law,  520  n. 
requiring  award  of  contract  to  lowest  bidder, 

524,  537. 
as  to  increase  of  municipal  debt,  524,  532. 
contents  of  bills,  524,  536,  and  note. 
repeal  of  statute,  191,  and  note,  524  ?i. 
title,  527. 

pay  of  legislators,  527,  531. 
requiring  oath  of  allegiance  from  legislators,  536. 
limiting  power  of  legislature,  421. 
as  to  common  schools,  533. 

uniformity  of  taxation,  540. 
provisos  and  exceptions,  construction  of,  513  n.,  526. 
retroaction,  presumption  against,  525. 

as  to  remedies,  525. 
same  words  in,  514. 

saving  of  existing  offices  in,  513  n.     See  Provisos. 
schedule  to,  functions  of  513. 

efl'ect  of,  in  construction,  513. 
omissions  not  supplied  from,  513. 
construed  together  with  body  of,  516  n. 
self-executing  provisions  of,  540. 
stare  decisis,  in  construction  of,  529,  530  n. 
strict  construction  of,  526  (520  n). 
surplusage  in,  rejection  of,  507  n. 
technical  and  popular  meaning  of  terms  in,  507. 
time  prescribed  in,  when  directory,  513  and  note, 
titles  or  captions  of  articles  in,  512. 
unexpressed  intent,  509. 
usage,  contemporaneous  and   legislative,  construction  of, 

527-528. 
waiver  of  provisions  of,  537. 
CONSTITUTIONAL   CONVENTION,  functions  of,  511. 

debates  in,  see  Debates. 
defect  remedied  by  subsequent  legislation,  191. 
CONSTITUTIONALITY  of  statute,  how  far  an  element  of  definition,  1  n. 

every  doubt  resolved  in  favor  of,  180  «.,  .524,  529  n. 
question  of,  wlio  only  can  raise,  537. 
See  Unconstitutional. 
CONSTRUCTION   (see  Acts  in  Pari  Materia,  Application,  Benefi- 
cial,   Equitable,    Liberal,    Literal,    Strict 
Construction). 
when  not  permissible,  4,  27,  507. 
is  to  ascertain  what  language  of  act,  not  what  legislature, 

means,  7. 
statute  presumed  to  be  passed  with  reference  to  rules  of,  8. 
of  act  embodying  several  distinct  acts,  42. 

several  acts  which  are  to  be  construed  as  one,  42. 
absurdity,  injustice,  contradiction,  unreason,  avoided  in, 

258  and  note,  264,  267. 
adoption  of,  by  re-enactment,  368,  371. 

transcribing  foreign  act,  371.     See  Con- 
stitution. 
transcribing,    does  not  adopt  fluctuation 
of  decisions,  371. 
amendment  made  to  harmonize  by,  40. 
arrangement  and  collocation  not  controlling  of,  70. 

60 


786  INDEX. 

[The  reference  ia  to  sections.] 

CONSTRUCTION  {continued). 

bonam  partem,  in,  385. 

cliange  of,  lias  effect  of  amendment,  1  n. 

codes  and  revisions,  of,  40,  368. 

consequences,  effect  of,  6,  ")07,  524. 

constitutions,  compared  witli  statutes,  506-540. 

contemporaneous,  357,  361,  527-528. 

context,  referred  to  in,  35,  42,  514-515. 

contracts,  statutes  containing,'  elements  of,  354  n. 

convenience,  &c.,  not  controlling  in,  4. 

curative  and  declaraiory  laws,  291,  293. 

date  of  etiactment,  meaning  at,  85. 

definition  of,  1,  note  2. 

division  of  subject  of,  1. 

double  penalties  avoided  by,  25.3-257. 

equitable,  in  sense  of  liberal,  320-321. 
strict  sense,  322-325. 

equity,  rules  of,  same  in  law  as  in,  325  n. 

evasion  avoided  in,  138. 
facilitated  by,  252. 

expressions  frequently  used  in  statutes,  388-395. 

former  law,  as  near  use  and  reason  of,  as  possible,  113. 

general  phrases,  act  relating  to  interpretation  of,  329  n. 

grammatical,  not  always  observed,  81-82. 

implied  repeal,  avoided  in,  2H)-244. 

inconsistency  avoided  in,  182-209. 

injustice  avoided  in,  258-263. 

in  pari  materia,  acts,  referred  to  in,  43-47,  367. 

insensible  enactments,  24. 
--   intent  of  maker  to  be  effectuated  by,  339.   See  Intention. 

interpretation,  distinction  between,  and,  1,  note  2. 

legislative  declaration  of,  365-377.     See  Interpreta- 
tion Clause. 

legislative,  of  constitution,  527-528. 

Lord  Coke's  rules  of,  27  and'note,  29,  103. 

new  jurisdiction  not  extended  nor  confined  by,  157. 

object  of,  1,  2,  329,  339. 

paramount  duty  of  judicial  interpreter  in,  329. 

penal  laws,  rules  of,  337. 

periodically,  act  requiring  something  to  be  done,  394. 

personal  liberty  favored  in,  339. 
_. plain  language  needs  no,  4,  27,  507. 

policy  not  controlling  of,  5. 

practical,  of  constitution,  527-528. 
statutes,  357-364. 

primary  rule  of,  2. 

pur|)ose  of  statute  to  be  carried  out  by,  29. 

redundant,  no  part  of  statute  to  be  made,  by,  23. 

same  word,  41. 

subject  and  object,  to  harmonize  with,  73. 

unreason,    inconvenience,    injustice,   absurdity,   avoided 
in,  245-266. 

usage,  effect  of  in,  357-364,  527-528. 

ul  magis  valeat  quam  pereal,  265. 

words  of  statute  control,  295  ?t. 
Constructive  knowledge,  105. 

notice,  117. 
Consulting  engineer,  not  a  laborer  or  operative,  99. 

Contagious  diseases  (see  Diseases)  act,  right  of  action  for  violation  of,  471,  474. 
Conlemporanea  exposilio  est  optima  et  Jortumima  in  lege,  357. 


INDEX.  787 

[The  reference  is  to  sections.] 

CONTEMPORANEOUS  acts,  43  ?i. 

circiiinslances,  history  and  public  opinion,  29. 
exposition,  357-364. 

of  constitution,  527-528. 

drawn  from  work  of  digesters,  357  n. 

of  clear  statutes,  358. 

recent  statutes,  359. 
age  of  usage  to  amount  to,  359. 
limits  of  eflect  of,  361. 
•Contempts,  419  and  note.    See  Attachment. 

■CONTESTED  ELECTIONS  (see  Elections),  construction  of  acts  relating 

to,  419  71.,  420  n.,  527  n. 
statutory  method  of  determining,  exclusive,  433n. 

binds     govern- 
ment, 433  71. 
requisites  of  petition  in  proceedings  in,  434  n, 

441  n. 
when  court  may  declare  vacancy  in  proceedings 

in,  419n. 
proceedings  in,  not  a  civil  case,  suit,  complaint 
or  plea,  507  n. 
CONTEXT,  comparison  of,  27,  35-42,  72.     See  Repealed  Portions. 
limits  of  rule  requiring,  41. 
in  construction  of  constitution,  514-516. 
correction  of  errors  by,  39,  319. 
expansion  of  meaning  by,  37. 
explanation  of  meaning  by,  38. 

general  words  shown  by,  to  be  used  in  particular  sense,  122  n. 
implied  repeal  prevented  by,  183. 
inconsistency  avoided  by,  40. 
omission  supplied  by,  39. 
qualification  of  absolute  words  by,  43  n. 
restriction  qf  meaning  by,  37,  115  n.,  122  71.,  216. 
Contingent  remainders,  3. 
Continuance  in  office,  508  n. 
CONTINUANCE  of  summons,  10. 

refusal  or  granting  of,  not  subject  of  exception,  125, 
of  case,  not  a  right,  486. 
•CONTINUATION,  when  enactment  to  be  construed  as,  203  and  note,  205. 

in  spite  of  express  re- 
peal, 222  and  notes, 
repeal  construed  as,  367  n. 

of  provision  by  re  enactment,  205.     See  Re-enactment. 
of  temporary  act,  eflect  of,  on  infringements,  489. 
Contract  obligation,  right  or  lien,  401  n. 

to  sell,  139. 
Contractor,  122. 

CONTRACTS  (see  Annulment,  Bid,  Breach  op  Promise,  Gaming  Con- 
tract, Lowest  Bidder,  Mail  Contract). 
and  acts  legal  when  made  or  done,  not  rendered  illegal  by 

subsequent  statute,  488. 
avoidance  of,  on  ground  of  illegality,  a  question  of  intention, 
457-459. 
question  of  malum  prohibitum  or  malum  per  se,  in, 
459. 
confederate  bonds,  538. 
constitution,  violating,  538. 
corporation  officer's  corrupt  interest  in,  458. 
discharge  of  obligation  of,  by  statute  rendering  illegal,  268, 
461-462. 


788  INDEX. 

[The  reference  is  to  sectioua.] 

CONTRACTS  (continued). 

discharge  of  corporator  Iroru,  witli  corporation,  461  n. 
disqualifying  from  making,  strict  construction  of  statute,  341. 
election  expenses,  to  contribute  to,  460. 
existing  laws,  presumed  to  have  been  made  with  reference  to 

274  n. 
form  and  execution  of,  strict  construction  of  acts  regulating, 
348. 
prescribed  by  statute,  455. 
government,  450. 
illegal  consideration,  foinided  on,  451. 

acts,  promoting,  involved,  growing  out  of,  452-453. 
purposes,  for,  454. 

feature,  when  one  makes  whole,  void,  460. 
performance  of,  statute  rendering,  illegal,  461-462. 
by  reason  of  penaitv,  not  legal  by  remission  thereof, 
488  n. 
illegality,  party  not  privy  to,  458. 

partial,  460. 
impairing  of,  presumption  against  construction  permitting,  267— 
270,  458. 
what  not  an  unconstitutional,  461  n. 
by  stale  constitution,  oU7  n. 
legislation,  efiect  of,  on,  461-462. 
new  agreements  superseding  illegal,  459. 
office,  to  give  deputation  of,  452. 
origin  of,  taint  in,  458,  459. 

particular  party  or  result,  effect  on,  of  act  affecting  or  declar- 
ing, 458. 
penalty,  void  by  reason  of,  455  «. 
personal  qualification,  absence  of,  in  making,  456. 
power  to  make,  involved  in  incorporation,  418. 

does  not  involve  right  to  give  obligation,  422.- 
prison  board,  making  of,  by,  348. 
prohibited,  under  penalty,  450. 
when  not  void,  444. 
public  officer  interested  in,  450. 
remoteness  of  taint  of,  458,  459. 

repeal  of  statute,  effect  of  on,  in  violation  thereof,  488. 
revenue  law,  in  fraud  of,  450,  457. 
sale  of  goods,  acts  relating  to,  of,  345,  455. 
sealing  of,  when  required,  439. 
statutes  refer  only  to,  made  in  state,  169. 

containing  elements  of,  354  n.,  505. 
contravention  of,  in,  449-462. 
succession,  for  sales  of  future,  449. 
upholding  of,  contrary  to  statute,  457-459. 
void  and  illegal,  distinction  between,  449. 
waiver  of  statutory  provision  as  to,  444. 
writing,  act  requiring  certain,  to  be  in,  98. 
Contradiction  avoided  in  construction,  258  71.,  295. 

Convenience,  argument  drawn  from,  4,  245.    See  Public  Safety  and  Con- 
venience. 
Convention,  see  Constitutional  Convention. 
Conversion,  act  relating  to  fraudulent,  334. 
CONVEYANCE,  construction  of  act  validating,  115. 
valid  as  between  partie.s,  118. 
lease  not  a,  145. 
not  a  mortgage,  145. 
construction  of  act  making  decree  for  deed  operate  as,  419  n. 


IJSiDKX.  78C 

[Tbe  reference  ia  to  sections.] 

•CONVEYANCE  (continued). 

power  of,  not  in  person  vested  with  land  for  public  pup 

poses,  423. 
agreement  to  make,  see  Married  Women. 
Convicted  of  felony,  284. 
CONVICTION,  effect  of  prohibition  of  removal  of,  by  certiorari,  11. 

former,  wlien  not  evidence  of  knowledge  of  theft  of  goods,  20. 
act  forbidding,    on   uncorroborated    evidence   of  accomplice, 
282.    iSee  Limitations. 
CONVICTS,  imprisonment  of,  in  place  otiier  than  designated,  437. 

no  private  right  of  action  for  employment  of,  contrary  to  law,  474. 
See  Property. 
Copartners,  or  joint  or  several  obligors,  or  promissnrs,  or  contractors,  103. 
Copied  statutes,  see  Transcribed  Statutes. 
apy,  18. 

COPY  of  instrument  sued  on,  what  meant  by,  18. 
recognizance,  when  sufficient,  18. 
writ,  when  incompetent,  18. 
when  substitute  for  original,  18,  105  n. 

requirement  of  original,  not  complied  with  by,  105  n. 
photograph  of,  337. 
COPY-RIGHT  LAWS,  115,  248,  335,  337,  434.    See  Any  Part,  Author, 
Reporter. 
photography,  112. 
foreigners,  176. 
Corn,  act  regulating  sale  of,  455. 

selling  in  sheaf,  494. 
Corporate,  251. 

buildings,  103. 
Corporations  invested  with  the  privilege  of  taking  private  property,  Ac,  518. 

possessing  right  or  privilege  to  mine,  purchase  and  sell  coal,  139,  300. 
CORPORATIONS,  affidavit  by  attorney  of,  110. 

attachmenls,  act  giving,  against  foreign,  287. 

by-laws  and  ordinances  of,  352  and  note. 

capital  stock  of,  what  included  in,  356. 

chartering  of,  act  authorizing  the,  353. 

citizens  include,  159. 

classification  of,  for  taxation,  519  n. 

constitutional  provisions  as  to,  518,  519,  520,  524,  532. 

applicable    to    existing,  518  n., 
525. 
contracts  of,  acts  relating  to  forms,  &c.,  of,  434. 

when  requirement  of  seal  not  abrogated,  118. 
creating,  strict  construction  of  acts,  354,  355. 
creation  of,  by  implication,  417. 
directors  of,  meetings  of,  352. 
bonds  of,  438. 
election  of,  438. 
division  of  one  corporation  into  two,  112. 
fines  and  forfeitures  in,  466. 
franchises  claimed,  construction  of  act  requiring  court  to 

examine  into,  114. 
grants  to,  not  construed  contrary  to  reason,  &c.,  251. 
implied  reservations  in,  251. 
implications  and  intemlments  in,  418. 
of  power  to  hold  and  dispose  of  stock,  418  n. 
incorporation  of,  act  proviiiiiig  that  fact  of,  admitted,  282. 
inhabitant,  when  and  when  not,  91,  92. 
insolvency  of,  act  relating  to,  prospective,  276. 
liability,  act  imposing  joint  and  several,  on  trustees  of,  261 


790  INDEX. 

[The  reference  is  to  sections.] 

COEPORATIONS  (continued). 

liability,  act  subjecting  stockholders  and  directors  to  in- 
dividual, 350  n. 
implied    repeal    lieiween    acts    relating   to,    of 

members  of,  2U7. 
members,  wlien  discharged  from,  461  n. 
name,  constitutional  provision  enabling,  to  change,  518  n. 

See  Change  of  Name. 
officers  of,  illegally  interested  in  contracts  of,  458. 

when  act  making,  lial)le  to  payment  of  money 
penal,  831. 
organization,  construction  of  act  relating  to,  208. 
persona,  when,  included  under,  87,  89,  519. 

what  only  included  und'jr,  89,  167. 
powers,  construction  of  acts  granting,  to,  354. 

not  expressly  given  to,  withheld,  398  and  note, 
promoters  of,  contracts  of,  450. 
prospectus,  acts  reiaiing  to,  137,  469. 

public,  practical  construction  of  statute  relating  to,  357  n. 
registry  of  mortgages,  failure  to  keep,  438. 
removal  of  officers  of,  strict  construction  of  act  authoriz- 
ing, 351. 
repeal   and  re-enactment  of  incorporation  act,    effect  of, 

490. 
residence  of,  what  is,  94. 
resident,  when,  not  included  by,  93. 
security,  investment  in  prohibited,  458. 
special  act  for  benelit  of,  not  repealed  by  general,  229. 
charters  of,  not  ref)ealed  by  general  laws,  229. 
Htock  book  of,  evidence  of  membership,  438. 
subscription,  acts  requiring  payment  of  certain  proportion 

of,  268. 
taxation  of,  226. 

trustee  in,  cannot  make  others  liable  by  own  wrong,  267. 
ultra  vires,  acts  of,  354. 
validating  acits  of,  statute,  292. 
See  Change  of  Name,  Charter,  Classification,  Coal 
COiMPANY,  Consolidation,  Cumulative  Voting,  For- 
eign   Corporation,    Gan    Company,    Incorporation, 
Judicial    Notice,    Municipal    Corporation.s,    Pri- 
vate Acts,  Proper  County,  Public  Body,  Eailroad 
Co.mpany,  Recognizance,  Remedies,  Shares,  Stock, 
Stockholder. 
CORRECTIONS  to  accomplish  purpose,  295. 

of  omissions  and  erroneous  insertions,  317. 
cleiic;il  errors,  319. 
See  Elliptical  Sentences,  Erroneous,  Errors,  Omissions. 
Coats,  226  n.,  347  {Addenda). 

of  prosecution,  63. 
COSTS,  effect  of  act  abolishing  imprisonment  on  decree  for  payment  of,  14. 
on  appeal,  77. 
in  slander,  221. 

certificate  of  judge  for,  247  (Addenda). 

construction  <jf  act  imposing  on  county  where  defendant  is  unable  to 
pay,  63,  110. 
giving  court  right  to  decide  as  to,  in  lunacy  pro- 
ceedings, 108. 
making,  discretionary  with  court,  114,  149. 
withholding,  where  recovery  not  exceeding,  &c.,  296. 
allowing,  347. 


INDEX.  "l  91 

[The  reference  is  to  sections.] 
COSTS  {continued). 

construction  of  act  increasing,  277.     fee  Ex  post  facto. 

directing  payment  of,  by,  not  to,  whom,  420. 
relating  to,  in  surety  of  peace  cases,  63. 
effect  of  making,  to  follow  event,  &c.,  199. 

repeal  of  statute  on  liahiliiy  for,  479. 
when  government  liable  for,  16G. 
general  rule  of  court  as  to,  when  bad,  149. 
not  to  be  imposed  on  successful  defendant,  114. 
acts  relating  to,  whether  prospective  or  retrospective,  277,  286. 
mere  creatures  of  statute,  347. 

rule  requiring  non-resident  to  secure,  when  impliedly  abolished,  417. 
See  Final,  Partition. 
Co-tenant,  efiect  on,  of  act  relating  to  cutting  of  timber,  126. 
Cotton,  taking  of,  131. 

construction  of  act  punishing  fraudulent  increase  of  weight  of,  410. 
Councils,  acts  making,  judges  of  election,  &c.,  of  members,  420,  527  ». 
Counsel,  see  Attorney. 
Counsel  fees,  see  Partition. 
Counterfeiting,  337,  386. 

Counterfeiting  and  having  in  his  possession,  305. 
Counties  and  townships,  518. 
County,  365  w. 

County  commissioners,  agreements  by,  not  laws,  507. 
courts,  il56. 
division  of,  336,  536. 

and  change  of  name,  effect  on  special  laws,  112. 
new,  effect  of  creation  of,  112  n. 
officers,  who  are,  532,  and  note. 

seat,  construction  of  acts  relating  to  change  and  removal  of,  530. 
taxation,  poor  district  and,  not  identical  for  purposes  of,  14. 
See  Bonds,  Debt,  Municipalities. 
Country,  75. 

Coupling  of  words  of  analogous  meaning,  400. 
Court,  29. 

in  which  the  action  tvas  brought,  219. 
COURTS,  authority  given  to,  wlien  autiiority  to  judge  at  nid  prius,  29. 
construction,  duty  of,  in,  4,  7,  18,  72,  329. 

of  unreasonable,  &c.,  statute  by,  266. 
to  be  according  to  own  judicial  view,  360. 
how  far  departmental  construction  binds,  360,  361. 
decisions  of,  part  of  statute  law,  1,  note  1,  127  ?i. 
different,  authorized  to  try  an  offence  or  issue,  218. 
duties  imposed  on,  imperative,  435. 
federal  and  state,  364. 
function  of,  to  interpret,  not  make  or  improve  law,  4,  7,  72.  ^ 

not  to  provide  for  defects,  &c ,  of  improper  legislation,  18. 
in  interpretation  of  unreasonable,  &.C.,  statute,  266. 
to  construe  according  to  own  judicial  views,  360. 
impossibility  arising  from  act  of,  or  of  clerk,  441,  442. 
powers  of,  to  interfere  with  statute,  328  and  note 

regulate  procedure,  limits  of  general,  351. 
none,  to  impose  conditions  additional  to  those  im- 
posed by  statute,  351. 
make  rules  and  punish  contempts,  419. 
procedure,  act  regidaiing  in,  imperative,  435. 

waiver  of  limitation  as  to  time  in,  445  and  note, 
rules,  strict  construction  of  act  authorizing,  to  make,  361. 
special  jurisdiction,  strict  construction  of  act  conferring,  on,  160, 
351. 


792  INDKX. 

[The  reference  i»  to  seclioiiK.] 
COURTS  (conlinued). 

special  powers,  confeiTed  on,  by  constitution,  526. 
stare  decisi-%  liow  far  bindin<j  on,  363. 
states,  courts  of  different,  follow  each  other,  364. 
teclinical  construction  in  statute  relating  to,  and  to  legal  proceed- 
ings, 74. 
waiver  as  to  procedure  and  practice  in,  445. 
wisdom  or  justice  of  legislature,  not  lo  judge  of,  72. 
See  Certioraki,  Costs,  Discretion,  Inferior  Courts,  Judicial 
Notice,  Jurisdiction,  Quo  Waebanto,  Reporter,  Rules 
OF  Court. 
Courtesy,  construction  of  acts  relating  to,  275  and  note. 

effect  of  legislation  upon  inchoate  right  of,  281. 
Court-house,  when  not  included  in  other  wor/cs  of  internal  improvement,  98. 
Court-aiartial,  3S8,  507  n.     See  Same  Offence. 
Covenant  to  stand  seized,  when  married  woman  not  bound  by,  123. 
Coverture,  plea  of,  149. 
Graft,  405. 
Crape  veils,  83. 
Credible  witness,  20  n. 
Creditors,  90. 

residing  within  this  state,  94. 
Creditors,  act   relating   to   right   of,   to    intervene,    inapplicable   to   pending 

cause,  282. 
Credits,  held  property,  75  n. 
Crew,  90. 
Crime,  75. 

CRIME  (see  Accused,  Incapacity,  Misdemeanor,  Offence),  evil  intent 
in,  129,  134. 
act  done  in  assertion  of  riglit  is  not.  131. 
knowledge  when  essential  to,  132,  134. 
committed  outside  of  jurisdiction,  174. 
statute  of  limitation  as  to,  changes  in,  279. 
Crimes  punishable  in  the  state  prison,  330  n. 

CRIMINAL  law  (see  Courts,  First  Offence,  Offences,  Penal  Laws) 
no  waiver  in,  446. 
statutes,  insensible,  24. 

modification  of,  295. 
trial,  see  Attachment,  Continuance,  Exception,  Writ  of 
Error. 
Crops,  growing,  when  not  property,  406. 
Cross-examination,  who  is  parly  liable  to,  77. 
Crossings,  see  Railroads,  Road  Crossings. 
Crown,  see  Government,  State. 
Oui  jwrisdictio  data  est,  ea  quoqne  concessa  esse  videntur,  sine  quibus  jurisdiclio 

explicari  non  potuit,  419. 
CUMULATIVE  acts  and  remedies,  218-221.    See  Common  Law  Courts, 
Wills. 
penalties,  2.S6,  241  n. 
procedure,  236. 

remedies,  218,  464  n.,  466,  467,  469,  470. 
voting,  368  n.,  536,  510. 
CURATIVE  ACTS,  construction  of,  291,  293.     See  Acknowledgments. 
effect  of,  on  pending  writ  of  error,  284  7i. 
as  to  school  districts,  108. 
Currency,  forbidden,  452. 
Current  expenses  of  the  year,  318. 
Curlilac/e,  79. 

CUSTOMS  (see  Special  Customs),  223  and  note,  362. 
controlled  by  statute,  361. 


INDEX.  793 

[The  reference  is  to  sections.] 
CUSTOMS  (continued). 

may  control  coininon  law,  361. 

legislators  cantiol  be  shown  to  have  known,  362. 

Dam,  181. 
Damage,  44,   120. 

to  harbor,  pier  or  dock,  121. 
DAMAGES,  act  allowing  actual  or  vindictive,  held  penal,  347  n. 
for  change  of  grade,  434. 
repeal  of  act  directing  assessment  of,  4S0. 

giving,  after  right  perfected,  481. 
See  Land  Damages,  PaNiTivE  Damages. 
Damnum  abaque  injuria,  423. 
Dale  of  issue,  295  n. 

Date,  of  statute,  misreference  to,  302.     Sea  MiSREFERENCE, 
Day,  534. 
Day,  fractions  of,  389,  498,  539.    See  Fractions,  Same  Dat. 

week,  month,  &c.,  389. 
Dead  animal,  when  mention  of  animal  includes,  249  and  note. 
Dealer,  98  n. 

Dean,  see  Exemption  of  Eesidence. 

DEATH  of  one  party,  effect  of,  on  performance  of  statutory  requirement  by 
other,  10,  441,  443. 
copartner,  ttc,  not  a  discharge  to  others,  103. 
plaintifi",  under  affidavit  of  defence  of  law,  443. 
sentence,  effect  of  repeal  of  statute  on,  478. 
DEBATES  upon  passage  of  hill,  29,  31. 
in  committee,  32,  (iS. 

constitutional  convention,  510. 
Debt,  65,  74,  76,  507  n.    See  Borrow,  Fictitious  Debt.  Municipalities. 
contracted,  367. 
due,  76. 
Debt,  effijct  of  grant  of  power  to  county  commissioners  to  create,  &c.,  199. 
Debtors,  see  Absconding  Debtors,  Sheriff. 
Debts  owing  by  foreigners,  where  taxable,  159  n.,  174  n. 
Decisions  of  courts  on  statute,  part  of  statute  law,  1  n.,  127  u. 

effect  of  change  in,  same  as  amendment,  1  n. 
DECLARATIONS  of  legislators,  30. 

legislative,  of  construction,  365,  377,  527-528. 

of  intention,  when  overcome  by  subsequent  act,  365. 

principles  no  indication  that  rule  was  different  before, 
374. 
in  assumpsit,  amendment  of,  149. 
DECLARATORY  clause,  see  Interpretation  Clause. 
laws,  construction  of,  4i91,  293. 
statutes,  172. 
Decrees  (see  Orders)  nisi,  act  extending  time  fur  making,  absolute  retro- 
spective, 286. 
Deed,  293. 

DEED,  strict  construction  of  act  declaring,  void,  341. 
in  contravention  of  statute,  460. 

conslruciion  of  conflicting  acts  .is  to  locality  of  registration  of,  189. 
See  Attestation,  Sheriff,  Validating,  Witnesses. 
Deeds  executed  and  acknowledged  in  another  stale  in  conformity  with  the  laws  of 

such  state,  1 1 0. 
Defeat  of  object  of  act,  6,  24,  265,  266,  385,  443.    See  Intention. 
Defecis  in  enactment,  court  cannot  rectify,  18. 
Defendant.  164  n. 

Defendant,  appeal  from  judgment  for,  as  exceeding,  &c.,  245. 
See  Co-defendant. 


794  INDEX. 

[The  reference  is  to  sections.] 
Defendant  or  tenant,  164. 
Defendants,  251  n. 

Definition  of  statute,  .see  Statute  Law. 
DEFINITIONS  in  code,  liow  treated,  40. 

of  words  by  repealed  acts,  48. 
statutory,  70,  103,  115,  365,  and  note. 

of  words,  &c.,  see  the  Particular  Word,  Phrase,  &c., 
TO  BE  Construed. 
Degree  of  crime,  effect  of  preservation  of,  240.    See  Penalty,  Quality. 
Delegated  powers,  exercise  of,  352-353. 

delegation  of,  352,  and  note. 
Delegation  of  powers,  strict  construction  of  acts  making,  352,  353.     See  Mu- 
nicipalities. 
Demolition  of  buildings,  act  permitting,  103  n.,  428. 

house,  when  not  exclusive  remedy  for  nui.sance,  467. 
Demurrer,  290,  417  n.    See  Special  Demurrer. 
Denial  of  providence  and  scri[)tures,  494. 
Departmental  usage,  360,  361,  527. 

Departure  from  meaning  not  justified  where  act  insensible,  24.     See  Changb,. 
Depending,  76. 
Deserters,  65. 
Deserting,  129. 

Desertion,  169  {Addenda),  380. 
Desertion,  337,  407.    See  Child,  Married  Women. 

act  authorizing  sale  of  property  of  husband  guilty  of,  152. 
Design,  see  Intention. 
Destroy,  79. 

Destruction,  see  De.molition,  Fences. 
Determination  and  judgment,  4-0  n. 
Determine  finallij,  381  n. 
Detinue,  44. 

Devise,  power  to  accept,  involved  in  power  to  make,  427. 
Difference,  see  Change. 
Directly  or  indirectly,  338. 
Directors  to  act  as  a  board,  429.     See  Bank  Corporations,  Kailroad. 

of  tlie  poor,  property  held  by,  not  properly  of  county  for  taxation,  14w 
DIKECTORY  and  mandatory  provisions,  431,  410.     See  Imperative. 

in  constitutions,  536. 
act  wliicli  is,  as  to  principal,  is,  as  to  surely,  431  n. 
nature  of  pr^wer  of  courts  to  declare  an  act,  431. 
acts  relating  to  performance  of  public  duties  when,  436. 
matters  of  procedure  by  public  ofiicers  are,  437. 
direction  to  non-offieial  persons  may  be,  438  71. 
duly,  remedy  for  omission  of,  440. 
DISABILITIES  of  sex  only  removed  by  act  relating  to  voting,  declaring  that 
words  of  masculine  gender  include  females,  115. 
cannot  be  tacked,  350  n. 

and  limitations,  acts  creating,  prospective,  279. 
construction  of  acts  imposing,  341  and  note. 
See  Incapacity,  Minors,  Married  Women,  Wills. 
Discharge  of  minors,  construction  of  act  relating  to,  322  w.     See  Convict. 
DLiclosed,  disclosure,  2)9. 

Discontinuance,  held  analogous  to  failure  by  reversal,  &c.,  417  n. 
Discount,  532  n. 

DISCRETION,  wlien  permissive  words  confer,  310,  311,  315. 
no  writ  of  error  to  matter  of,  125. 
as  to  opening  Judgments,  125. 

issuing  wiit  o(  quo  warranto,  125. 
change  of  venue,  314. 
rales  as  to,  held  not  altered  by  statute,  125. 


INDEX.  795 

[The  reference  is  to  sections.] 

DISCRETION  (conlinued). 

limits  of,  conferred  on  officers,  148. 

conferred  by  aulliorily  to  judges  to  make  such  order  as   to 

tiiem  sliould  seem  meet,  148. 
judicial,  what  is  meant  l)y,  147,  480. 
settled  practice,  when  to  control,  149. 
manner  of  exercise  of,  where  intended  to  be  exercised  in  every 

particular  case,  149,  150. 
exercise  of,  in  grantinj^  liquor  licenses,  150  (Addenda). 
how  to  be  exercised,  Ho2,  428-429,  430. 
to  be  exercised  honestly,  147. 

in  a  reasonable  manner,  14S. 
See  Judicial  Power,  Licknse,  Liquors,  Taxation. 
Discrimination    on    account   of  color,  &c.,  in  public   places,  47.     See   Publie 
Place  of  Amusement. 

See  Railroad,  Tolls. 
Diseases,  act  relating  to,  held  prospective,  271.     See  Contagious  DISEASES. 
Disinterested  witness,  20  n. 
Dismissal  of  prosecution,  see  Prosecution. 
Disorderly  persons,  213. 
Dispute  as  to  the  amount,  155. 
Disqualification  of  re[)resentatives  and  senators,  508  n. 

to  sit  as  judge,  see  Judge. 
Distances,  computation  of,  395. 
Distillery,  illegal  construction  of,  136. 
Distinct  statutes,  construction  of  act  embodying,  42. 

DISTRESS,  strict  construction  of  act  giving  right  of,  351.     See  Improve- 
ment, Removal  of  Goods. 
warrant,  strict  construction  of  acts  authorizing,  344. 

act  authorizing  on  proof  of  demand,  &c.,  428. 
oaih  re(juired  fur,  106. 
Distribution,  see  Percentage. 

Distributive  application  of  words,  see  Reddendum  Singula  Singulis. 
District,  38. 
District  attorney,  right  of,  as  to  quo  warranto,  418  n. 

courts,  377. 
Dividends,  .see  Street  Railway  Company. 
Division  of  counties,  see  County. 

one  corporation  into  two,  112. 
Divisions  of  statute,  see  Arrangement,  Headings. 
Divorce  law,  with  reference  to  notice,  non-residence,  «&;c.,  169  (Addenda.) 

libel  for,  by  minor  wife,  17. 
Documents,  see  Production  of  Documents. 
Dogs,  act  relating  to,  246. 

included  in  other  animals,  299. 
Domestic  distilled  spirits,  83  n 
Domestic  servants,  when  not  laborers,  405. 
Done,  104. 

D  )uble  value,  act  allowing,  332.     See  Punitive  Damages. 
Doubt,  see  Ambiguity,  Reasonable  Doubt. 
Dower,  3. 
Dower,  construction  of  act  relating  to,  275  and  note. 

effect  of  legislation  upon  inchoate  right  of,  281  n. 
Draft,  79. 
Draft,  construction  of  act  making  presentment  of,  purporting  to  be  endorsed, 

sufficient  auihority  to  banker  to  pay,  137. 
Drain,  what  involved  in  power  to  dig  up  street  to  make,  424. 
Draw-bridge,  duty  of  owner  as  to,  424. 
Drawing  and  quartering,  494. 
Driver,  338. 


796  INDKX. 

[The  re/creiice  ia  to  sections.] 

Driving  and  riding,  oonstriiclion  of  act  relating  ti)  furious,  338. 

Drove,  24. 

Drug,  act  punishing  administration  of  noxious,  334.     See  Administer,  Cause  to 

be  'Taken. 
Drunkenness  (see  Intoxication)  on  own  premises,  258. 
Ducking  slool,  494,  495  n. 
Due,  76. 

process  of  law,  428  Ji.,  507. 
Duelling,  offence  of,  under  constitution,  523  «.,  531  n. 
During  .  .  .  successive  weeks,  389. 

the  continuance,  296. 
Duties,  see  Duty,  Imperative  and  Directory,  Obligations. 
Duties  now  by  laiv  to  l)e  performed  by  deputy  attorneys-general,  418  ti. 
Duly.  401. 
DUTY,  when  imposition  of,  involves  protection,  423. 

in  one  may  imi>ly,  in  another,  426. 

remedy  for  omission  of  directory,  440. 

or  prohibition  for  benefit  of  particular  person,  right  of  action,  469. 

remedy  for  non-performance  of  new,  470. 

violation  of,  to  particular  class,  no  right  of  action  to  others,  471. 

s{tecial  injury  necessary  to  sustain  action  for  breach  of  public,  473. 

remoteness  of  injury  for  breach  of  public,  473. 

remedies  for  breach  of  public,  see  Implied  Remedies,  Right  of 
Action. 
Dwelling,  94,  350. 

liou^se,  249  and  note. 

shop,  warehouse  or  counting-house,  405. 
Dwells  or  carries  on  his  business,  401. 
Dyeing,  see  Seeds. 

Each,  254. 

and  every  year,  209. 
Earlier  legislation,  effect  of,  in  construction,  43  and  note. 

cognate  acts,  365. 
Earnings  (see  Married  Women)  do  not  belong  to  creditors,  248  and  note. 
Easements,  10,  12,  79  {Addenda),  251. 
Eavesdroppers,  494. 
Editor,  see  Newspaper. 

EFFECT  to  be  given  to  every  word,  &c.,  23,  413. 
of  rule  of  strict  constriicti(m,  330,  339. 
See  Commencement,  Consequences. 
Eight-hour  law,  268,  459  n. 

hours,  omission  of  stipulation  as  to,  in  contracts,  268. 
Either  in  the  penitentiary  or  the  state  prison.,  443. 

Ejectment  against  corporations  taking  land,  154  n.    See  Improvement,  Mort- 
gage. 
Ejusdem  generis,  rule  as  to  understanding  of  words  as,  186,  405-411. 
ELECTION,  see  Bali.ot-boxf:s,  Cii\n(je  op  Datk,  Contested  Election, 
Corporatioxs,  Cumulative  Voting,  Municipalities, 
Polls,   Primary    Ei,ection,    Re-election,    Registry 
List,  Voting. 
appointment  is  not,  508  n. 
expenses,  contract  to  contribute  to,  460. 
Election  law,  335  n.,  340  n.,  508. 
ELECTION  law,  construction  of,  338. 

officers,  duty  of,  to  be  present  and  provide  voting  papers,  425. 
liability  of,  to  suit  for  breach  of  duty,  469. 
Elections,  100. 
ELECTIONS  not  embraced  in  procee'lirifjs,  74. 

acts  authorizing,  mean  only  oa  lawful  days,  114. 


INDEX.  79T 

[The  reference  w  to  sections.] 

ELECTIONS  {continued). 

candidate  acting  as  returning  officer  of,  ineligible,  114. 

act  relating  to  contested,  of  members  of  legislature,  155,  181. 

state  bound  by  laws  relating  to,  167,  433  n. 

construction  of  act  relating  to  contested,  381  n.,  419  n.,  420  n., 

433  n. 
provisions  as  to  manner  of,  directory,  438. 

of  poor  guardians,  held  directory,  437. 
qualification  of  voters,  imperative,  432. 
construction  of  penal  acts  relating  to,  334. 
constitutional  provision,  that,  shall  be  by  ballot,  520. 
on  same  day,  539. 

of  known  ineligible  person,  see  Candidate. 
witliout  registration,  see  Registry. 
Electors,  434  n.    See  Townships. 
Elementary  rule  of  construction,  2. 
Elevator,  floating,  held  a  vessel,  103. 
Eligibility,  114. 

Elimination  of  words,  301-302.    See  Surplusage. 
Elliptical  sentences,  treatment  of,  318. 
Embankment,  see  Highway. 

Embezzled  government  stores,  liability  for  having,  in  possession,  132. 
Embezzlement,  334,  470. 
Emergency,  421. 

clause,  536. 
EMINENT  DOMAIN,  right  of,  how  exercised,  154n.,  423. 

limitations  upon,  161-162. 
constitutional  provision  as  to  compensation 
for  exercise  of,  518,  520. 
strict    construction    allowing    seizure    of    property 
under,  343. 
See  Remedies. 
Emoluments,  508.     See  Officers. 
Enabling  act,  see  Married  Women,  Validating. 
Enacting  clause,  mutilation  of,  494  n. 
Enactments  contrary  to  constitution,  180,  538. 

See  Acts,  Bills,  Constitutional,  Construction,  Liberal  Construc- 
tion, Statutes,  Strict  Construction. 
End,  348. 

Endeavor  to  procure  the  return,  338. 
Enemv,  trading  with,  136. 
Enfeoff,  79  71. 

Enyayed  in  navigation,  95  n. 
Engineer,  unlicensed,  456. 
English  acts  in  pari  materia,  53  n. 

construction  of  statutes  copied  from,  371. 
Engraving  of  painting,  photograph  of,  337. 
Enlistment  acts,  29.     See  Discharge. 
Enumeration,  effect  of,  397,  398,  513. 
Entilled,  114  n.,  334  and  note,  385  n. 
Entering  or  being,  382. 

EQUITABLE  construction,  in  sense  of  liberal,  110  ti,,  320-321. 

strict  sense,  322-325. 
of  ancient  statute,  322-323. 

inapplicable  to  penal  statute  and  arbitrary  regu- 
lation of  public  policy,  323,  329. 
of  modern  statutes,  324,  325. 
instance  of,  305. 

of  acts  relating  to  procedure  and  practice,  327^ 
417  n. 


798  ixDEX. 

[The  reference  is  to  sections.] 

EQUITABLE  (conlinued). 

construction,  principle  of,  discredited,  325. 

establi.slied,  of  one  stiUiite,  ;ipplied  to  another,  326. 
doctrines,  statute  presumed  framed  with  reference  to,  32-5. 
extension  of  penal  acts  inadmissible,  329. 
restriction  of  modern  statute,  32  t-.'-i25. 
EQUITY,  not  to  control  constniciion,  4.     See  Ixjustice. 
when  act  construed  in  cotisonance  with,  Hoi. 
acts  contrary  to  naiural,  328. 
of  statute,  see  Equitable  Construction. 
proceedings  in,  included  by  actions,  77,  168. 
rule  of  construction  same  in  courts  of,  as  at  law,  325  n. 
courts,  jurisdiction  of,  when  not  taken  away,  151. 
Equity  of  redemplimi,  403. 
Equivocation,  see  Ambiguity. 
Erecting,  140. 
Erection,  140  n.,  405  n. 

ERRONEOUS  assumption  by  legislature  may  have  force  of  law,  376-377. 
insertions,  correction  of,  317.     See  Omissions. 
opinion,  legislative  intimation  of,  122,  372-376. 

expression    of,    in    language    competent    to    make, 
law,  376. 
order,  expired,  not  reversed,  441  n. 
recitals,  375.     See  Misrecitals. 
reference  in  statute  to  length  of  street,  122. 
Error,  see  Writ  of  Error. 
Errors  (see  Clerical,  Errors,  Omissions)  in  figures  not  corrected,  16. 

context  may  correct.  39. 
Escape,  127  n.  See  Prisoner. 
Escape,  suit  against  sheriff"  for,  159. 

Essence,  of  enactment,  things  not  of  the,  436.     See  DIRECTORY. 
Estate,  interest  or  lien,  299. 

of  the  wife,  123. 
ESTOPPEL  in  pais,  applied  to  municipality,  165  n. 
from  claiming  benefit  of  statute,  448. 

constitutional  provisions,  537. 
Etymological  propriety  of  language  not  always  followed,  73. 
EVASION,  construction  to  prevent,  138-145. 

permitting,  inndmissible,  329. 
facilitating,  when  required,  252. 
keeping  outside  of  act  is  not,  144. 

presum|)tionagainst,  of  constitutional  provision,  521.    SeeSPECIAIi 
Legislation. 
Every  bond  and  obligation,  381. 
case,  115  71. 

company  or  association  whatever,  44. 
conveyrmce,  1 15. 
inhabitant,  97. 
matter  in  dispute,  118. 
person,  115,  256,  258. 

found  drunk  on  licensed  premises,  258.  "^ 

offending,  254. 
tenant  in  tail,  227. 
town  in  the  stale,  228. 
warrant  of  attorney,  116. 
writing,  315. 
EVIDENCE  of  extrinsic  matter  in  interpretation  of  statute,  28. 
affidavit  of  defence  may  be  given  in,  417. 
answer  in  chancery  may  be  given  in,  417. 
power  to  hear,  implied,  419  n. 


INDEX.  799 

[The  reference  ia  to  sections.] 

EVIDENCE  (continued). 

construction  of  act  making  maps  satisfactory,  of  certain  mat- 
ters, 116. 
declaring  specific  effect  of  certain  deeds,  124. 
changing  rules  of,  128. 
making  comptroller's  certificate,  of  amount 
due,  181. 
act  relating  to,  held  not  to  affect  pending  cause,  282. 
to  affect  pending  cause,  284,  287. 
whether  change  of  rules  of,  applies  to  pending  cause,  284 n. 
effect  of  constitutionul  provision  requiring  accused  to  be  con- 
fronted with  witnesses,  on,  520. 
See  Adverse  Possession,  Conviction,  Self-Criminating,  Wit- 
nesses. 
Examination  of  long  account,  155. 

Ez  aniecedentibus  et  co rise quenlibus  fit  optima  interpretatio,  35. 
Excavation,  see  Highway. 
Exceeds,  245. 

Except  as  hereinafter  mentioned,  184  w. 

EXCEPTION  (see  Bill  op  Lading),  must  be  negatived  in  pleading,  184n. 
of  contract  relating  to  sale  of  goods  includes  guarantee,  345. 
not  to  be  deemed  a  repeal,  216, 
particular  provision  deemed,  to  general,  111,  216. 
express,  shows  words  to  be  used  in  wide  sense,  408. 
of  two  out  of  SKcty  counties  in  act,  and  the  like,  507  w. 
Exceptional  cases  not  to  be  controlling,  263  ?i. 
Exceptions  to  any  decision,  125. 

EXCEPTIONS,  none  to  be  made  by  construction,  17.     See  Insane,  Minors. 
of  persons  under  incapacity  from  statute  creating  crimes,  130. 
required  to  make  act  constitutional,  179. 
by  construction  in  favor  of  infants,  249. 
saving  clauses  and  provisos,  184,  186.     See  Savings,  &c. 
construction  of,  186,  343,  345. 

in  criminal  cases,  125. 
consiitution,  526. 
strict  construction  of  acts  creating,  from  recognized  liabili- 
ties, 350. 
from  statute  of  limitations,  343. 

strengthen,  and  enumeration  weakens,  &c.,  398,  533. 
Excess  of  state  power,  presumption  against,  in  state  constitution,  523. 
Exchange,  see  Municipalities;  Sell. 
Exclusive,  349. 

jurisdiction,  152  n.    See  Jurisdiction,  Retrospection. 
EXCLUSIVE  rule,  implied  repeal  by  acts  designated  to  furnish,  200,  231. 
statutory  remedies  and  jurisdictions,  154,  466,  470,  433  n. 
remedy  against  state  is,  154. 
Excuse,  statute  making  an  act  a  crime  impliedly  admits,  129. 
Executed,  44. 
Execution,  act  forbidding  denial  of,  except  after  affidavit,  «&c.,  403  n.      See 

Contract. 
Executions,  act  relating  to,  prospective,  276,  289., 

held  applicable  to  pending  causes,  286. 
See  Attachment,  Stay,  Strict  Construction. 
Executive,  effect  of  signature  by,  of  bill  repealed,  190.     See  Vacancies. 
Executive  usage,  360.     See  Departmemtal  Usage. 

EXECUTORS  AND  ADMINISTRATORS  (see  Administrator),  omission 

in  statute,  working  hardship  as  to,  19. 
when  exempt  from  giving  bail  on  appeal,  44. 
when  not  ti-iistees,  122.    See  Jurisdiction. 
not  within  affidavit  of  defence  laws,  249. 


800  INDEX. 

[The  reference  is  to  sections.] 

EXECUTORS  AND  ADMINISTRATORS  (cojilinued). 

exception  of,  from  statute  of  limitations,  250. 
of  {)er.sons  dying  abroad,   included  in  after  they 
return,  296. 
Executory,  see  Inciioatk  Right. 
Exemption,  construction  of  act  relating  to,  from  payment  of  tithes,  65. 

from  taxation,  not  exemption  from  municipal  assessments,  101. 
strict  construction  of  act  creating,  356. 
when  act  for  partial,  liberally  construed,  356. 
construction  of  a  [jarticular,  45. 
common  burdens,  stri(;t  construction  of  act  conferring,  356. 
of  places  of  religious  worship,  95  and  note,  356. 
ship-owners,  98. 
public  property,  163  and  note, 
swine.  249. 
tools,  261. 

debtor's  property,  120,  350. 
to  widow  and  family,  52,  100,  218. 
act  giving,  to  execution  debtor,  decides  nothing  as  to  title,  120. 

not  applied  retrospectively,  37. 
claim  for,  when  to  be  made,  52. 

by  particular,  not  removed  by  general,  act,  221  and  note, 
express,  of  one  is  not  inclusive  of  another,  374. 
subse()uently  acquired  property  falls  under  original,  417. 
by  implication,  .376. 
of  residence  when  implied,  420. 
waiver  of  statutory,  444. 
regulations  of  act  conferring,  imperative,  434. 
See  Attachment,  Common   Carriers,   Married  Women,  Occu- 
pier, Wages. 
Existing  law.  See  Presumption. 
Existing  railroad  corporations,  112. 
Existing  rule,  effect  of  express  enactment  of,  374,  386. 

constitutional  provision  not  construed  as  useless  repetition  of, 
520. 
Exoneration,  see  Exemption. 

Expansion  (see  Extension)  of  particular  terra  by  context,  37. 
Ex  parte  proceedings,  notice  required  in,  262. 
Expelled  pilot  not  n  pilot,  11. 

Exi)enses,  act  directing  payment  by  a  certain  party,  but  not  to  whom,  420. 
Expiration  of  time  for  enforcing  a  right,  when  loss  of  right,  468. 

repealing  statute,  eflect  of,  475. 
Explanatory,  act  not  to  be  violently  construed  as  merely,  222. 

See  Declaratory  Act,  Interpretation  Clause. 
Ex  post  facto  laivs,  507. 

law,  what  is,  277. 

when  act  increasing  costs  is,  277. 
Express  enactment  of  existing  rule,  374,  386. 
Exfiressio  unius,  &c.,  216  ?i.,  374,  397-399,  398  n.,  533. 
EXPRESSIONS  of  opinion  by  legislators,  30. 

frequently  used  in  statutes,  some,  388-395. 
general,  following  several  words,  414. 
in  middh-  of  clause,  415. 
See  Change  of  Language,  Particular  Expression,  Same 
Phraseology. 
Erpressum  facit  cessare  taciturn,  424. 
Extend,  extended,  241. 

Extended  meaning  given  to  words  of  remedial  act,  107,  112. 
EXTENSION  to  matters  not  within  language,  limit  of,  110. 
of  remedial  acts  to  new  things,  112. 


INDEX.  801 

[The  reference  is  to  sections.] 

EXTENSION  (continued). 

to  matters  within  intention,  instance  of,  417  n. 

See  Action,  Association. 
of  constilntionai  language  by  reference  to  subject  matter  and 
object,  518-519. 
External  circnmstances  in  construction,  27-34,  509-510. 

facts,  evidence  of,  28. 
EXTRA-TERRITORIAL  FORCE,  of  statutes,  question  of.  169-170. 

effect  of  presumption  against,  335. 
of  constitution,  523  and  note. 
Extra  terrllorium  jus  dicenti  impune  non  paretur,  169. 
Extrinsic,  see  External. 

Factories,  who  is  oivner  of,  96. 

Factors,  when  held  not  acting  in  a  fiduciary  capacity,  90. 

act,  construction  of,  118. 
Facultative,  see  Permissive. 

Failure  of  justice,  effect  of,  on  construction,  6,  155. 
False  pretence,  338. 

signals,  when  making,  is  obstruction  of  railroad,  337. 
Falsification  of  claim,  what  discrepancy  is  not,  119. 
Family,  100,  103. 

of  husband  and  wife,  378. 
any  married  woman,  378. 
Farmers,  98. 

Farming  lands,  see  Rural  Lands. 
Father,  337.    See  Maintenance,  Putative  Father. 
FEDERAL  and  state  coiuts,  364.     See  Congress. 

courts,  act  declaring  laws  of  stales  tlie  rule  of  decision  in,  122. 
relating  to  suits  for  fines,  &c.,  in,  416. 
decisions  of,  controlling  in  interpretation  of  federal  con- 
stitution, 523  n. 
constitution,  corporations  persons  under,  519. 

difference  between  construction  of,  and  of  state  con- 
stitution, 535. 
See  Amendments. 
Fee  simple,  120.     See  Orant  in  Fee,  &c. 
Fees,  64  n. 

Fees,  agreement  to  pay  attorney,  122. 
offence  of  taking  iiif^gal,  119. 

See  Costs,  Officers,  Partition. 
Felons  and  other  malefactors  and  offenders  against  the  law,  65. 
FELONY,  act  done  in  assertion  of  right  is  not,  131. 
incapacity  by  reason  of,  to  be  witness,  240. 
effect  of  declaring  offence  a,  417. 
See  Children,  Fines  and  Forfeitures,  Quality  op  Offence. 
Female,  see  Masculine,  Minors. 
Feme  covert,  see  Married  Women. 

sole  trader,  see  Married  Women. 
Fence  dangerous  machinery,  construction  of  acts  requiring  owner  to,  218. 
Fences,  construction  of  act  requiring  railroad  company  to  make,  103,  220 fW 

punishing  destruction  of,  264. 
Fertilizers,  sale  of,  in  violation  of  act,  455. 
Fictitious  debt,  creation  of,  to  evade  statute  of  mortmain,  140. 
Fiduciary  c<ip"city,  90. 
Figures,  see  Error. 
Filing  of  complaint  and  notice,  29. 
i^uia/,  74,  15i7i.,  420n.  ^ 

Final,  effect  of  making  judgment  of  court,  upon  execution  for  costs,  420; 
Finally,  381  n. 

51 


802  INDEX. 

[The  reference  is  to  sections.] 
Fine  and  imprisonment,  304. 

FINE  AND  IMPRISONMENT,  statute  imposing,  leaves  no  discretion  to 

court,  15. 
when  not  botli  to  be  imposed,  44. 
act  jmnisliable  by,  464. 
FINES  and   forfeitures,  limitation  of  time  for   recovering,  inapplicable   to 
murder,  &c.,  126. 
power  to  impose  of,  not  less  than,  397  n. 

riglit  of  compelling  payment   by,  not  exclusive  of  suit,  466.     See 
Building  Association. 
FIRE  (see  Railroads)  right  to  destroy  buildings  to  prevent  spread  of,  103 

and  note, 
construction  of  act  giving  compensation 
for  exercise  of,  103  and  note, 
implication  from  grant  of  power  to  prevent  and  extinguish,  418. 
escape,  action  for  injury  from  failure  to  erect,  469. 
limits,  ordinance  establishing,  in  borough,  3-52. 

power  of  establishing,  434.     See  Erecting,  Building. 
Firm  name,  use  of  &  Co.  in,  453.    See  Partnership,  Pawnbrokkr. 
First  offence,  construction  of  acts  prescribing  penalty  for,  214. 
Fish,  grant  of,  in  pond,  423.     See  Salmon. 
Fishing  in  tidal  river,  131. 

non-tidal  river,  134. 
Fitness  of  subject  matter,  general  words  restricted  to,  86. 
Florida  commissioners,  act  organizing,  118. 
Food,  see  Adulteration. 
For  cause,  428. 
Forcible  entry,  381. 

and  detainer,  suit  for,  159. 
Foreclosure,  see  Insane,  Mortgagor. 
Foreign,  514  n. 

FOREIGN  attachment,  see  Attachment. 
corporations  not  persons,  89. 

residence  of,  94. 
country,  refusal  of  wife  to  follow  husband  to,  1()9  (Addeada). 
funds  not  included  in  any  public  .  ,  .  securities,  335. 
held  bonds,  169  71. 

state,  see  Warrant  of  Attorney. 
statute,  adoption  of  construction  by  transcribing,  371. 
of,  before  amendment,  371  n. 
Foreign  nations.  533  n. 

FOREIGNERS,  169.    See  Collateral  Inheritance  Tax. 
limits  of  jurisdiction  over,  169,  174. 
rights,  privileges,  duties  and  status  of,  174,  176,  177. 
real  estate  of,  174. 

remedies  of,  governed  by  lex  fori,  177. 

right  of,  to  take  share  of  intestate  person's  property  unaflecte.l 
by  act  directing  distribution    to  same  person,  &c.,  ;i> 
though  it  were  real  estate,  176  » 
Forever,  173. 

Forfeiture.  3,  388.    See  Fines. 
FORFEITURE,  act  causing,  of  life  estate,  122. 

strict  construction  of  acts  working,  343. 

infliction'  of,  in  one,  is  exclusive  of,  in  other  aspect,  397  n., 

455  n. 
of  lease,  act  allowing  order  for,  428. 

right  of,  not  exclusive  of  other  remedies,  466.     See  Curi'  > 
ration. 
Forgery  of  bank  notes,  construction  of  act  punishing,  247. 


INDEX.  803 

[The  reference  is  to  sectiona.] 

Formalities  (see  Forms),  wlien  to  be  observed,  10.     See  Marriage. 

in  judicial  procedure,  4'iio. 
Former  law,  see  Earlier  Legislation. 

FORMS  (see  Contracts,  Strict  Construction),  given  in  schedule,  71. 
courts  look  at  substance,  not  at,  138. 
of  enacUnent  prescribed  by  constiiuiion,  536. 
For  the  use  of  the  ivorkhouse,  73. 
Forthwith,  388. 
Far  yi'.ars,  320. 
Fiimd  in  possession,  132  n. 
Founded  on  a  contract  made,  367. 
Fractions  of  a  dav,  189  n.,  389,  498,  539. 

week,  389. 
Frame  buildings,  140,  and  note. 
Fraud  ti)  invalidate  marriage,  3. 
Fraud,  riglit  to  recover  lands  on  ground  of,  117. 
See  Bona  F'ides,  Limitations,  Revenue. 
FRAUDS,  right  of  state  to  prosecute  claim  on  account  of,  in  connection  with 
a  railroad  not  surrendered  by  act  conflrming  sale  of  road  and 
title  of  purchaser,  119. 
statutes  of,  269,  328,  348. 
acts  to  suppi-ess,  333. 
Fraudulent  and  void  as  against  the  assignees,  378. 

transfer  of  property,  365. 
Fraudulent  removal,  see  Removal. 

use,  not  within  grant  of  power,  146. 
Freehold  clear  of  all  encumbrances,  102. 

estate,  79  (Addenda). 
Freight,  350  [Addenda). 
French  text,  28  n. 
From,  28  71,  101,  249,  391. 

and  after  the  passage,  238  n. 
the  date,  S9l. 

day  of  the  date,  391. 
Fully  and  distinctly,  536. 
Functions  of  the  court  in  interpretation  of  statutes,  see  CotTRT. 

legislature,  see  Presumption. 
Furnaces,  see  Smoke. 

FUTURE  date,  construction  of  act  limited,  take  effect  at  a,  272,  284,  499. 
discounts,  mortgage  to  national  bank  to  secure,  450. 
legislatures,  see  Legislature,  Presumption. 
tense,  present  operation  in  spite  of,  82. 
Futures,  138. 

Gambler  not  entitled  to  reimbursement  out  of  proceeds  of  recognizance,  473. 

Gambling,  see  Wager. 

Game  laws,  296,  301,  337. 

GAMING  (see  Wager)  contracts,  269,  419. 

suit  for  money  lost  at,  is  suit  of  civil  nature,  159. 

act  allowing  loser  or  any  other  person  to  recover  money  lost  at, 
385  n. 
recovery  of  money  lost  at,  387. 

expiration  of  time  for  suing  for  money  lost  at,  468. 

table  kept  by  agent,  135. 

in  his  house  or  premises,  252. 

laws,  333,  337,  338,  406,  411,  452 

place  occupied  for,  411. 
Garnishee  process,  act  allowing  justice  of  the  peace  to  issue,  retrospective,  287. 

act  extending  time  for  tiling  answer  by,  retrospective,  288. 
Oas  companies,  353. 


804  ISDKX. 

[The  reference  is  to  sections.] 

Gas  company,  fouling  of  water  by,  133,  241. 

Gates,  see  Kailuoads. 

Gender,  see  Masculine. 

Oeneral — public,  502  n. 

GENERAL  ACTS  read  into  special  charters,  56. 

in  terms  applicable  to  subject  of  special,  232. 
incorporaiion  of  provisions  of,  in  act  on  particular  sub- 
ject, 233. 
and  particular  enactment  on  same  subject  in  same  act,  399- 
inient,  111,  216. 

provisions  in  constitution,  515  n. 
and  special  acts,  223,  233. 

no  implied  repeal  between,  in  spite  of  repealing 

clause,  223. 
conflict  between,  merely  apparent,  226. 
when  former  repeals  latter  by  implication,  230, 
232. 
words,  restricting  effect  of  association  of,  396. 
clause  following  several,  to  whicii  it  is  equally  applicable,  532. 
expression  following  several  words,  &c.,  414,  532. 
clauses,  414. 
at  end  of  section,  414. 
in  middle  of  clause,  415. 
intent  not  excluded  by  particular  expression,  111,  216. 
language  restricted  to  conform  with  constitution,  179.  See  Terms. 
by  reference  to  subject  matter  and  object,  86, 

101. 
to  specific  purpose  shown  by  context,  37,  216. 
80  as  not  to  interfere  with  special  laws,  228 
and  note, 
exception  to,  in  favor  of  infant,  249. 
legislation   on   particular   subject  yields   to  special   legislation 

thereon,  399  n. 
manager  not  a  laborer,  99. 

provisions  not  defeated  by  narrower  subsidiary  ones,  111. 
effect  of  specific  and  particular,  upon,  216. 
construction  of  act  relating  to  interpretation  of,  329  n. 
restrictive  provisions  at  end  of  series  of  sections,  414. 
rules,  see  Costs,  License. 

terms,  limitation  of,  by  context,  37.     See  Language,  Words. 
to  particular  parties,  137. 
so  as  not  to  violate  international  law,  174. 
produce  injustice,  258. 
include  government,  161. 
words,  restriction  to  subject  matter,  86,  101,  518,  619.    See  Lan- 
guage, Terms. 
by  specific  purpose  of  act,  113,  137. 
context  and  intention,  115  n. 
preamble,  see  Preamble. 
include  rare  caseD,  263  n. 
controlled  by  associated  specifications,  400. 
to  receive  full  and  natural  meaning,  405. 
Oeneral  election,  514. 

Oeneralia  specialibus  non  deroganl,  223-233. 
Generic  words  added  to  specific,  405-411. 
Genus  includes  new  species,  112. 
Qift,  79  n  ,  103,  145  and  note. 

delivery  or  transfer,  400. 
Gift  enterprise,  454. 

prohibition  of  sale  does  not  prohibit,  145. 


INDEX.  805 

[The  reference  is  to  sections.] 

Girl  under  sixteen,  abduction  of,  131,  133. 

Give.  80. 

Given,  338. 

Go,  75  n. 

Gold  or  silver,  when  not  included  by  metaU,  412. 

Gone  to  sea,  12. 

Good  faith,  see  Bona  Fides. 

Goods,  54,  90,  118. 

chattels,  lands,  tenements  or  hereditaments,  414. 
and  merchandise,  400. 
or  merchandise,  127. 
wares  <ind  merchnndise,  400. 
GOVEK.NMENT  (see  Statk),  when  included  by  person,  89  n. 
not  included  in  general  terras  of  statute,  161. 
,  taxing  acts,  163. 

act  taking  away  certiorari,  164. 
statute  of  limitations,  164. 
when  included  in  statute  of  lituitations,  164. 
statutes,  166,  167. 

though  not  named,  167,  168. 
bound  by  statute  relative  to  elections,  167,  433  n. 
when  engaged  in  business,  167. 
as  nominal  plaintiff,  164. 
by  constitution,  523. 
whether  affected  by  prescription,  164,  notes  70,  78. 

usage,  361. 
grantee  of,  whether  bound  by  statute  of  limitations,  164. 
statutes  allowing  suit  against,  168. 
taxing  provisions,  construed  most  strongly  against,  345. 
contracts,  449,  450. 
Governmental  usage,  360,  see  Departmental  Usage. 
Governor  (see  Executive,  Vacancies)  effect  of  message  or  proclamation  o^ 

in  construction  of  statute,  68  a. 
Grade,  see  Street. 
GE,AD1:NG,  act  relating  to,  436. 

power  of,  how  exercised,  434. 
recovery  of  damages  for  changes  in,  434. 
tax,  see  Exemption. 
Grain,  103. 

GRAMMATICAL  order  of  sentences,  how  far  to  be  adopted,  2. 
construction  doubtful,  4. 

propriety  of  language  not  always  followed,  73,  81,  82. 
construction,  when  departed  from,  113. 

rejected  to  accomplish  purpose,  295. 
strict,  sacrificed  to  intent,  414. 
rule  as  to  reference  to  last  antecedent,  414,532. 
sense,  language  of  constitution  to  be  read  in,  507. 
Grandchildren  included  in  children,  80,  321. 
Grandmother,  see  Married  Women. 
Grant,  79  and  note,  and  Addenda. 
Grant,  bargain  and  sell,  80. 

in/ee  or  oj  a  freehold  estate,  79  (Addenda). 
GRANT  of  land  held  adversely,  act  annulling,  does  not  invalidate  whole 
instrument,  118. 
covered  by  water,  act  extending  city  limits  over  navigable 
waters  for  civil  and  criminal  jurisdiction,  is  not,  122. 
by  matter  of  record,  75 
Gratuitous  services,  strict  construction  of  act  requiring,  345. 
Graveyard,  running  street  through,  225.     See  Cemetery. 
Greater  part  of  them  in  interest,  13. 


806  INDEX. 

[The  reference  is  to  sections.] 
Ground  rents,  80. 
Gromiil  reiiis,  .'■{-12. 
Grounds,  see  Reasons. 

GuaraiUee,  see  Charter-Party,  Exe.mption. 
Guardian,  see  Tku.st. 

ad  litem,  see  Married  Wo.me.v. 
Guilty  mind,  distinction  heiween  mens  rea  and,  136. 
Gunpowder,  liability  for  c.irrying,  contrary  to  act,  132. 

Htibeds  corpti.%  incident  to  new  proceedings,  154. 

Huckney  carrkuje,  378. 

Half-year,  389. 

Hardship,  no  reason  for  supplying  omission  in  statute,  19. 

consideralion  of,  in  construction,  251,  2G3,  2t)6,  507. 
See  Equity,  Inconvenie.vck,  Injustice. 
Harmonizing  all  parts  of  act,  40,  182,  210. 
consiitulioii,  515. 
Headings  of  chapters,  articles,  sections,  effect  in  construction,  69,  70,  512. 
Hciiring  and  notice  required,  426.     See  Ke.MOVAL. 
Heir  preferred  by  literal  construction  to  failier,  11. 
lleirx,  77. 

Heirs  and  assigns,  when  synonymous  witii  legal  representatives,  79. 
Held,  383. 
Hereafter,  196,  272  n.,  381,  483,  489. 

made,  272. 
H<:reditaments,  251. 
Herein  provided,  294. 
Hereinbefore  provided,  196  ?i. 
Heretofo-e,  196  n.,  272,  381  n.,  489. 
HIGHWAY,  what  included  in  biying  out  of,  79. 

act  giving  damages  for  injuries  from  excavation  or  embankment 

on,  126. 
intent  in  obstructing  immaterial,  133. 

not  to  be  appropriated  under  right  of  eminent  domain,  162. 
See  Road,  Street,  Trespass,  Turnpike. 
Himself,  106. 
His,  388  n. 

real  estate,  249. 
HISTORY  an  element  in  construction,  29,  72,  295  n.     See  Public  Embar- 
rassment. 
parliamemary,  of  statute,  30.    See  Parliamentary  History. 
in  construction  of  constitution,  509,  510,  518. 
Hoarding,  424. 
Hog-!,  running  at  large,  129. 
Hu/d  and  dispose  of,  418  n. 
Hole,  see  Mine. 
Homestead,  preemption,  &c.,  rights,  116. 

act  exern[)iing,  to  debtor  decides  nothing  as  to  title,  120.     See 
Exemption. 
Horse  racing  (see  Wager),  suit  for  recovery  of  money  lost  at,  159. 

entrance  money  for,  452. 
Horses,  381,  (304). 

oxen,  pigs  and  sheep,  from  whatever  country  they  may  come,  414  n. 
Hospitals,  76. 

Hotel,  ()ers')ns  employeil  about,  when  not  laborers,  405. 
Hounds,  offr!n(;e  of  keeping,  to  destroy  game,  254. 
Hours,  see  Fractions  of  Day,  Polijs. 
IJ'jiuse,  54,  249  and  note. 
J  III  use  holder,  92. 
House,  power  to  pull  down  walls  of,  424. 


INDKX.  807 

[The  reference  is  to  sections.  1 

Ituuses  of  ili-l'iiiie,  888  n. 

Hi/use,  warehoiisi,  cotintmg-home,  shop  or  other  building,  406. 

HUSBAND,  not  owner  of  wife's  separate  property,  though  occupying  it,  96. 

as  such,  in  custody  of  lunatic  wife,  not  person  having  care,  &c.,  121. 
iiabiiily  of,  for  wife's  torts,  wlien  not  changed  l)y  statute,  123._ 

del)ts  of  wife  dimi  sola,  act  relieving,  prospective, 
275. 
afier  wife's  death,  321. 
joinder  of,  in  wife's  deed,  484. 

See  Courtesy,    Desertion,    Married    Women,    Mort- 
gage, Widow. 
and  wife,  provision  tliat,  shall  not  be  required  to  testify  against 
each  oiher,  872. 
conveyances  to,  520. 
murder,  434. 

Identification,  external  matters  to  be  looked  at  for,  28. 

Identity  of  language,  see  Adoption,  Intention,  Cognate  Acts,  Language, 

Phraseology. 
Idiot,  see  Husband,  Incapacity,  Lusatic,  Wife. 
Idle  persons,  218. 
If  an  insolvent  petition,  800. 
they  should  think  fit,  815. 
IGNORANCE  of  law  in  civil  matters,  1  n.,  134  71. 
or  misapprehension  of  law,  134. 
as  a  defence,  132,  134. 
when  no  defence,  383. 

excuse  fur  selling  adulterated  food,  36. 
cutting  timber  on  another's  land  in,  129. 
of  pending  suit,  129.    See  Knowledge. 
effect  of  legislature's,  of  force  of  former  law,  207  and  note. 
ILLEGAL  and  void,  distinction  between,  449. 

statute  not  construed  to  render  legal  what  previous  statute  made, 

126. 
acts  legal  when  done  not  rendered,  by  subsequent  statute,  488. 
consideration,  451. 

acts,  contracts  connected  with,  &c.,  452-453.     See  Contracts. 
purpose,  s.tle  for,  454. 
tax,  see  Taxes. 
voting,  384. 
Illegality  of  origin  of  contract,  remoteness  of,  458,  459. 

partial,  460.    See  Unconstitutional. 
Illegitimate  ofispring,  when  children,  77. 
daughter,  387. 
See  Bastard,  Legitimation,  Married  Women. 
Immediaie  antecedent,  see  Last  Antecedent. 
Immediately,  247,  388. 

after  verdict,  247. 
Impairing  of  contracts,  see  Contracts. 

IMPERATIVE,  permissive  words  construed  as,  306-317,  430. 
words  consirued  as  permissive,  316. 
when  acts  relating  to  judicial  proceedings  are,  and  when 

not,  435. 
acts  relating  to  performance  of  public  duties  held  not,  436. 
matters  of  procedure  by  public  officers,  held 
not,  437. 
and  directory  provisions,  431-440,  536. 

disiinction  between,  431. 
tests,  482-437. 


808  INDKX. 

[The  reference  ia  to  sections.] 

IMPERATIVE  {continued). 

and  directory  provisions,  eflect  of  negative  and  affirmative 
words,  432. 
duty — [jiivilege,  433. 
convenience  and  justice,  433. 
public  inconvenience   and   private 

injury,  438-439. 
acts  conferring  powers,  privileges, 
&(:,  434. 
IMPLICATION,  wliat  is  involved  in  statute  by,  is  part  of  it,  417. 
incidents  and  consecjuences  sanctioned  by,  417. 
corporations,  creation  of,  by,  417. 
duty  arising  by,  from  imposition  of  another,  425. 

duty  on  another,  426. 
'  grant  of  right  to  another,  427. 

jurisdiction,  ouster  of,  by,  153. 

creation  of,  by,  155,  156.    See  Jurisdiction. 
lien,  creation  of,  by,  417. 
offences  by,  see  Offences. 
remedy  by,  463,  474. 
repeal  by,  see  Implied  Repeal. 

right  arising  by,  in  one  from  grant  of  right  to  another,  427. 
taxation  by,  see  Taxation,  Taxes. 
IMPLICATIONS  and  intendments,  417-430,  535. 

not  extended  beyond  what  is  necessary,  422. 
various,  420. 

what  are  not  proper,  422  (354  71.) 
IMPLIED  amendmant,  see  Amendment. 

assurance  of  protection  in  grant,  &c.,  of  power,  duty,  &c.,  423. 

conditions  in  grant  of  judicial  power,  428-429. 

enactment  of  rule  from  legislative  assumption  of  its  existence,  376- 

377. 
exercise  and  expression  of  legislative  judgment,  421. 
grant  of  powers,  418. 
negative  in  affirming  statute,  199-209. 
obligations,  424. 
powers  of  corporations,  418. 

under  constitution,  535. 
prohibition  of  uses  of  certificates  of  registry,  450. 
remedies,  463-474. 

where  act  prohibits  or  commands  something  public,  464. 
creates  obligation  and  gives  remedy  in  same 
section,  465-466. 
duty  and  gives  remedy  in  different  sec- 
tions, 467-468. 
remedies,  where  third  persons  interested  in  duty  or  prohibition, 
469. 
for  non-performance  of  new  duty,  &c  ,  470. 
where  penalty  recoverable  by  party  aggrieved,  470. 
by   action,  limited    to   those  within  gisi,  471-472.     See 
Right  of  Action. 
repeal  (see  Later  Acts,  &.c.),  between  parts  of  same  act,  182-186. 
between  acts  passed  at  ditiiereiit  sessions,  187. 

same  session,   188.     See  Same  Ses- 
sion. 
same  day,  189.     See  Same  Day. 
of  statutes  and  p.trts  of  statutes  omitted,  see  OMISSIONS. 
constitutional  requirements  iis  to  form  of  repeal  inai)plica- 

ble  to,  191,  524  71. 
presumption  against,  210-244. 


INDEX.  809 

[The  reference  is  to  sections.] 
IMPLIED  [cmlinued). 

repeal,  exceptions  to  avoid,  216. 

modifications  to  avoid,  215-217,  240  and  note, 
restriction  of  language  to  avoid,  211-214,  397. 
suspension  to  avoid,  215  and  note, 
degree  of  inconsistency  required  in  order  to,  210. 
question  of,  no  absolute  rule  for  determining,  188. 
is  question  of  intent,  203. 
negatived  by  express  repeal  in  later  act,  47. 

particular  repeal  in  same 
act,  203,  397. 
want  of  reference  to  earlier  act, 
239  n. 
eflFect  of  misappreliension   or  ignorance  of  legislature  of 
former  law,  207  and  note, 
inconvenience  and  incongruity  between  acts,  208. 
expressed  intent  to  repeal,  206. 
by  act  requiring  less  or  more  than  former,  199. 
between  acts   establishing  conflicting   riglits  or  liabilities, 
207. 
granting  power  on  different  conditions,  207. 
by  act  intended  to  furnish  exclusive  rule,  200,  231. 

covering  whole  subject  matter,  200-204,  230,  241-242. 
revisions  and  codifications,  201-203. 
inferred  from  later  legislation,  209. 
by  negative  statutes,  198.     See  Negative  Act. 

affirmative  statutes,  199-209_. 
whether  amendment  works,  195-196. 
by  re  enactment,  194.     See  Re-enactment. 

unconstitutional  act  or  clause,  192  and  note. 
of  common  law,  201. 

laws  deriving  force  from  former  connection  with  other 
slate  or  nation,  204. 
limits  of,  205. 

when  general  act  is,  of  special,  230-232. 
of  special  municipal  act  by  code,  in  spite  of  saving  clause, 
230. 
detached  special  acts  by  general  substitute,  230.  ^ 

special  act,  effect  of  indication  that  legislature  had  in 
mind,  230. 
by  general  act  intended  to  furnish  exclusive 
rule,  231. 
in  terms  applying  to  its  sub- 
ject matter,  232. 
of  prior  general,  by  later  particular  act,  216  and  Addenda. 
between  penal  acts,  235-244.     See  Penal  Act. 

by  change  in  quality  and  incidents  of 
offence,  238. 
degree    of    punishment, 

239. 
penalty,  239-240. 
statute  covering  whole  subject  mat- 
ject  matter,  241-242. 
none,  where  objects  not  identical,  235. 
proceedings     cumulative, 
236. 
from  mere  change  in  locality,  &c., 
237. 
distribution 
of  penal- 
ty, 237. 


810  INDEX. 

[The  reference  is  to  sectiona.l 
IMPLIED  (continued). 

repeal,  beiween  penal  acts,  none,  where  no  room  to  infer  legisla- 
tive pardon,  238. 
change  is  towards  leniency, 

239. 
degree  of  crime  preserved, 

240. 
later  act  continues  former, 
242. 
question  of,  where  later  act  gives  qui 

tarn  aciion,  241  and  note, 
effect  of  diicti'ine  of,  based  on  idea  of 
legislative  pardon,  238,  478. 
revenue  laws,  243. 
special  laws,  234. 
none  by  later  act  of  earlier,  when,  183,  193. 
schedule,  197. 

subsequent  removal  of  some  evils  provided  against, 
2U9. 
between  acts  where  conflict  merely  apparent,  211-214. 

general  act  and  act  providing  for  single  contin- 
gency, 212. 
relating  to  special  object  or 
cla:  s,  223. 
and  particular  provision,  216. 
acts  giving  cumulative  remedies,  218. 
affirmative  acts  without  express  or  implied  nega- 
tive, 218-222. 
by  explanatory  act,  222. 

in  spite  of  express  repeal,  when,  222  and  note, 
by  general  act  of  special  act,  223-233. 
of  provisions  of  general  act  incorporated  in  particular,  by 

repeal  of  general,  233. 
where  act  prescril)es  effect,  it  is  to  have,  203,  397. 
reservation  in  giant  to  cor(>oiations,  251. 
Impossibilities,  441-443. 

Impoutiding  of  animals,  construction  of  act  relating  to,  258. 
Impression,  see  Erroneous. 
Impressment  of  property,  strict  construction  of  act  for,  343. 

act  authorizing,  407. 
Imprisonment,  388. 

IMPKISONMENT,  effect  of  act  abolishing,  on  decree  for  payment  of  costs,  14. 

attachment  for  contempt,  74. 
abolition  of,  for  debt,  507  n. 
second,  for  same  offence,  II ti. 
making  punishment  less  severe  preferred,  330. 
not  authorized  by  right  to  order  distiess,  350. 
power  to  inflict,  of  not  less  than,  etc.,  397  7i. 
of  appellant,  435. 

in  place  other  than  designated  by  statute,  437. 
act  directing,  either  in  penitentiary  or  state  prison,  443. 
and  fine,  when  court  must  Impose  both,  15. 
Improvement  of  street,  388  n. 
Improvements,  388  n.     See  Internal  Improvements. 

engines,  &c.,  400. 
Improvements,  act  giving  tenant  or  husband  benefit  of,  prospective,  276. 
public,  le^'islature  judge  of  necessity,  &c.,  of,  421. 
See  Assessments,  Municipalities. 
In  addition  io,  372  n.,  404. 
any  other  manner,  112,  335. 
way,  4U7. 


INOKX.  811 

[The  reference  is  to  sections.] 

Inapplicability  of  procedure,  24. 

remedy  to  particular  subject  excludes  it,  37. 
Incapacities,  240. 
IiiCiipacitv,  persons  under,  excepted  frotn  statute  creating  crimes,  130. 

See  Disability,  Intoxication,  Marrikd  Women,  Minors,  Wills. 
Inchoate  rights,  effect  of  legislation  upon,  281  and  notes,  290. 
INCIDEN'ES  of  prosecution  and  trial  applicable  to  new  offences,  112. 

common   law  proceedings  extended   to  new  proceedings,  154. 
statutory  remedy  follow  extension  of  it  to  new  matter,  417. 
and   co-nsequences   included   in  specific  purpose   of  statute, 
4i7.    See  Implication. 
quality  of  offence,  eliecl  of  change  in,  238. 
Incivile  est,  nisi  lota  lege  perspecla,  una  aUqua  partictilu  ejus  proposita,  judicare 

vel  respondere,  35. 
Jnclosare,  388  n.,  405. 
Include,  3t}5  n. 
Income,  77  n. 
Incompetency  to  testify,  construction  of  act  removing,  124,  126. 

of  testator,  effect  of  act  removing,  on  will  made  before,  120. 
Incongruity  between  acts,  20:^. 
INCONSiSTENCY  avoided  by  comparison  of  context,  40,  515. 

degree  of,  required  for  implied  repeal,  210.     See  Implied 

Kepeal. 
presiuupiion  against  intended,  258.     See  Conflict. 
INCONVENIENCE  in  serving  notice  required  by  statute,  13. 
between  acts,  2U8. 
effect  on  construction  of  presumption  against,  251-257, 

See  Imperative  and  Directory. 
effect  on  construction  of  presumption  against,  in  con- 
stitution, 5U7,  524. 
literal  meaning  leading  to,  rejected,  295. 
kind  and  degree  of,  inliueQcing  construction,  251,  252. 
caution  in  applying  argument  from,  251. 
rarely  happening,  2ti3 /i. 
See  Convenience,  Injustice,  Mischief,  Public  Safety. 
Incorporated  city  or  town,  321  n. 

Incorporated  act,  see  Kkference  Act,  Statute  Embodying  Distinct  Acts. 
Incorporating  act,  effect  on,  of  repeal  of  act  incorporated,  492-493. 
INCOKPOKATION  of  town  as  city,  effect  on  form  of  suit  for  penalty,  112. 
construction  of  general  words  of,  251. 
of  general  in  s;)ecial  act,  233. 

provision  of  general  act  in  act  on  particular  subject, 
233. 
See  Corporation,  Private  Acts,  Reference  Act. 
Incorporeal  hereditaments  iuciuded  in  herediluments,  251.     See  EASEMENT. 
Incorrect,  see  Erroneous. 
INCUMBRANCE,  conveyance  not  an,  145, 
lease  not  an,  145. 
road  when  not  an,  80. 
Incumbrances,  80. 

Indemnity,  construction  of   acts   providing,  to  citizens   for   injury  by  fran- 
chise, 108. 
Indenture,  see  Apprentice,  Attorney. 
Index  aniini  sermn,  8. 

Indians,  95,  169,  250,  341  n.,  514  n.,  533  n. 
Indictment,  379  ;  information,  18. 

INDICTMENT,  wlieu,  lies  for  violation  of  statute,  463,  464, 
for  failure  to  repair  roads,  467, 
murder,  520. 


812  INDEX. 

[The  refereuc©  ia  to  sections. ] 

INDICTMENTS,  acts  affecting,  held  retrospective,  288. 

prospective,  289. 
effect  of  repeal  of  statute  aiitlioriziug,  on,  478,  483. 
and  prosecutions  broayhl  or  exitibiled,  416  n. 
INDIVIDUAL  hardship,  2«3,  266. 

legislators,  views  of,  30. 

liability,  see  Cohpokations,  Partners,  Stockholdhbs. 
Indorsement,  see  Draft. 
INDOKSER  with  notice  not  protected  by  usury  acts,  117. 

not  competent  to  invalidate  instrument  to  which,  a  party,  126. 
act  de[)riving,  of  defence  of  usury  prospective,  277. 
liability  of,  on  note  given  for  gaming  consideration,  to  indorsee, 
449  n. 
Ineligibility,  act  declaring,  held  prospective,  271. 

of  candidate  receiving  majority  of  votes,  see  Candidatjb. 
Infants,  see  Disability,  Incapacity,  Minors,  Wife. 
Inequality,  see  Taxation,  Tolls. 
In  fault,  47. 

Inferential,  see  Implied. 
Inferior  does  not  include  superior,  412-413. 
limit  of  rule,  413. 
Inferior  courts,  530. 
INFERIOR  courts,  jurisdiction  of,  152. 

not  construed  into  a  jurisdiction,  155. 
jurisdiction,  see  Justice  of  the  Peacu. 
Information,  18,  379  »i. 

Infraudem  legia  facil,  qui,  salvis  verbis  legis,  sententiam  ejii6  oircumvenit,  138. 
Inhabilancv,  what  amounts  to,  93. 
i/iAa6aa/i<,  91,  92,  93,  97,  519. 

of  the  slate  or  usual  resident  therein,  93. 
or  occupier,  162  n. 
Inhabited  dwelling  house,  103. 
house,  54. 
or  occupied,  92. 
Inherit,  77. 

Inheritance,  words  of,  when  dispensed  with,  14. 
Jn  his  care  or  within  his  power,  132. 
house  or  premises,  252. 
possession  or  his  control,  267. 
INJUNCTION,  114,419.    See  Obstruction. 

remedy  by,  when  not  taken  away,  151  and  note, 
application    for,  not   within    requirement   of    one   month's 
notice,  258. 
Injuries  to  persons  by  collision,  included  under  damage,  41. 

short  of  loss  of  life,  not  within  |)rovisioa  relating  to  loss  of  life,  336. 
See  Imperative  and  Directory. 
INJUSTICE,  literal  construction  effecting  an,  11. 
presiimpiioii  against,  258-263,  524. 
to  be  avoided  in  construction,  258  n. 
literal  meaning  leading  to,  rejected,  295. 
Innkeepers,  434.     See  Publican. 
Inland  navigation,  98. 
In  law  or  in  equity,  159. 
lieu  of,   196. 
operation,  1 15,  38-5. 
pursuance  of,  297. 
Innocent  holder  of  note  for  gaming  consideration,  449. 
INOPEliATiVE,  omissions  rendering  an  act,  22. 
enactments,  21.     See  Insensible. 
when  courts  must  construe  act  as,  266  and  note. 


INDEX. 


813 


[Tbe  reference  is  to  sections.] 
InSitsee^HusBAND,  Lunatic,  Wife),  mortgagor,  no  exception  in  favor 

Insensible  (see  Inoperativk),  act  not  to  be  treated  ««.  265 
Insignificant  variations  of  language,  381,  383,  531.    bee  CHANGE. 

Insolvency,  90  n. 

INSOLVENT,  allowance  to  widow  ot,  lb. 
in  Scotland,  494. 
laws,  constriiclion  of,  300. 
Inspection  of  rates,  act  giving  right  of,  to  every  inhabitant,  9/. 
Instantly,  388. 

Inslrume.nt  of  gaming,  406.  vr^^^o 

INSURANCE  companies,  108.    See  Premium   Notes. 
•^^^^^^  F  _^^^  requiring,  to  have  certain  amount  secured  on 

real  estate,  102. 
policy  of  unlicensed  foreign,  455  n.,  458  n. 
laws,  see  Departmental  UsAGjs.  ,    ..     -,      ,. 

policies  assigned  to,  or  taken  for  beneht  of  wite,  <Sc.,  14. 

waiver  of  act  entitling  assignee  to  sue  in  own  name, 

444. 
on  cargo  of  ship  sailing  contrary  to  law,  453. 
See  Killing,  Wager  Policies. 
Intended,  337. 

Intendments,  see  Implications. 
Intent,  see  Intention,  Meaning,  Same  Session. 
INTENTION,  supposed  real,  not  to  control  plain  language,  4-b. 
^  ,  ^^[^J^^,^  ^,.,,,^p  ^f  doubtful  gramraaiical  construction   295. 

what  legislature  intended  to  do,  not  what  it  has  done, 
72. 
not  to  be  arrived  at  by  speculation,  7. 
and  language  identical,  8,  5U9. 

ascertainment  of,  main  purpose  of  construction,  iL^o. 
qualifying  repealing  clause,  -llin. 

to  be  soMsht  in  statute  itself,  72.  

to  be  carried  out,  if  ascertainable,  43n,  72,  295.  329n.,  339,  507. 

no  construction  admissible  when  defeats  obvious  3J9. 

apparent   to  prevail  over  literal  construction  of  langunge,  264. 

when  discovered,  prevails  over  all  rules  of  construction,  o6o. 

constitution  to  be  construed  according  to,  507. 

restriction  of  general  language  by,  1157i. 

modification  of  language  lo  meet,  29o-319. 

analogous  matters  held  to  be  witlun,  1 10  32^  ?;', 

what  is  within,  of  makers,  is  within  the  law,  414  n. 

une.xpresssed,  417,  &c.,  509. 

to  establish  a  rule  implied  from  erroneous  assumption  of  its 

existence,  376-377. 
change  of  language,  when  not  change  of,  381-c.SJ. 
evil,  when  essential  to  ofience,  119.     See  Incapacity. 
when  element  of  crime,  129,  134. 
in  obstructing  highway  immaterial,  133. 

good,  when  no  excuse,  136.  Ji„„„  „f 

construction  of  statute  which  would  create  guilt  regardless  of, 
130  n.,  261. 
Intentionally  neglect,  350  n. 


Interest  or  policy  of  the  hiw,  128.  .  .  „f  „„„„»-, 

INTEREST  (see  Usury),  meaning  of  provisions  requiring  consent  of  greater 
part  in,  13. 

adverse,  nut  from  same  source.  15. 

disqualifies  a  man  to  be  jiidgre,  1 14,  520. 

act  allowing  addition  of,  331.    See  Percentage. 


814  INDEX. 

[The  reference  is  to  sections.] 

Interfering  with  righls  of  property,  75. 

Intermeddle,  152. 

Inieriiiediate  act  not  repealed  by  le-enactiuent  of  earlier,  194. 

Internal  improveiufnl,  lOS. 

INTEKNATIONAI.  LAW,  169,  175,  373. 

not  presumed  to  be  violated  by  statutes,  174. 
clear  violation  of,  duty  of  courts  as  to,  175. 
Interpleader  act,  construction  of,  120. 
Interpolations  (see  Additions),  nol  allowed,  16,  295  n.,  507. 

to  acc()in()lisli  inient  of  statute,  295,  296,  298-300. 
INTERPRETATION,  definiiion  of,  1,  note  2.     See  Construction. 
Lord  Coke's  rules  of,  27  and  note,  29. 
clauses  in  statutes,  365  and  note. 
Interpreter,  wben  niaj^jstraie  cannot  take  ucknowledjj'nent  throun;h,  12. 
Intestates  (see  Foricio.nkrs.  Judgmkmt,  Orphax.s'  Court),  act  relating  to 

distribution  of  estates  of,  held  retrospective,  288. 
In  the  execution  of  his  duty,  133. 
office,  297. 
parish,  21. 
premises,  411. 
Intoxication  (see  Drunkenness),  when  a  defence,  130.     See  DisTiLi.KFiY, 

License,  Liquors. 
Invalidating  act,  strict  consiniciion  of,  341. 
Involving  matters  of  accowil,  155  n. 
In  which  the  action,  was  brought,  219. 
Irreconcilable,  see  Impi,ied  Repeal. 
A  382. 
Issue,  73. 

Issued  not  read  levied,  24. 
Ita  lex  scripla  est,  507. 
It  shall  and  may  he  lawful,  308. 
6e/a«/«/,  306,  308,  311. 

Jack,  prohibition  against  standing,  without  license,  139. 

Jail  held  an  inhabited  dwelling  house,  103. 

Joinder  of  husband  in  wife's  deed,  434  n. 

JOINT  and  several  oH'ences  and  penalties,  253-257. 

debtor,  construction  of  act  giving  attachment  against  one  and  sum- 
mons against  other,  114. 
provision  that,  shall  not  lose  benefit  of  s-tatute  of  limitations, 
276. 
defendants,  act  giving,  right  to  sever  inapplicable  to  pending  cause, 

289  n. 
power,  how  exercised,  352. 
Joint  heirs,  77. 
Journals  of  legislature,  33.    See  Judicial  Notice,  Opinions  of  Leoisla- 

TORS. 
appendix  a  part  of,  33  n. 
JUDGE  holding  court  adected  by  Sunday  law,  90  n. 
no  one  can  be,  in  bis  own  case,  1 14,  520. 
when  re(]uiri'd  to  give  his  opinion,  see  0PINI0.N. 
See  Discretion,  Election,  Judicial,  License,  Minutes. 
Judges,  succession  of,  under  Pennsylvania  constitution,  513 n.,  514. 
Judgment,  77,  125,  344,  385.     See  Judqmknts. 
JUDGMENT  not  a  proceeding  commenced,  74. 
creditor  not  pnrc.hasn-,  lb. 

against  in'estate,  Oiplians'  Court  in   PenTisylvania  cannot  de- 
termine who  entitled  to  benefit  of,  118. 
what  is  not,  upon  (juo  warranto,  125. 
when  exceeds  given  amount,  245. 


INDEX.  815 

[The  rofereucc  is  to  sections.] 

-JUDGMENT  (continued). 

implied  exercise  and  expression  of  legislative,  421. 
See  Affidavit  of  Defence,  Attorney,  Court,  Decrees,  Final, 
Limitations,  Orders,  Rules  of  Court,  Transfer,  War- 
rant OF  Attorney. 
Judgment  recovered,  77. 

upon  any  writ  of  quo  warranto,  125. 
JUDGMENTS,  opened,  wlien  may  be  transferred,  14. 
nndockeled,  19. 

revived  by  amicable  proceedings,  125. 
acts  allowing  conrts  to  open,  108. 

giving  ap|)eal  from  refusal  of  courts  to  open  confessed, 

125,  400  n. 
directing,  against  collectors  for  principal  and  interest,  &c., 

249. 
making,  liens  on  decedent's  lands,  249. 
forbidding  execution  of,  prospective,  275. 
relating  to,  pro-pective,  276. 
authorizing  on  nil  dicit  extended  to  cognovit,  327. 
court  to  mark,  satisfied,  344. 
transfer  of,  249. 

execution  on,  249. 
preference  of,  in  distribution  of  intestate's  estate,  412. 
JUDICIAL  decisions  part  of  statute  law,  1  n.,  367. 

effect  of  unreported,  under  stare  decisis,  368.     See  De- 
cisions. 
functions  (see  Court),  presumption  against  intent  to  invade,  172. 
legislation,  8,  13. 

notice  of  historical  surroundings  of  passage  of  act,  29. 
legislative  journals,  33  n. 
resolutions,  501  n. 
discussion  of,  501-504. 

statute  requiring  courts  to  take,  retroactive,  501  n. 
powers,  implied  condition  in  grant  of,  428,  429. 

exercised  in  accordance  with  rules  of  judicial  procedure, 

428. 
are  judicial  duties,  430.    See  Discretion. 
proceedings,  waiver  of  limitation  as  to  time  in,  445  and  note, 
sale,  see  Liens,  Sale. 
usage,  efl'eci  of,  in  construction,  358-359. 
JURISDICTION  of  state  extends  over  ships  and  waters,  169,  174. 

acts  relating  to,  held  prospective,  151  and  note,  271. 

retrospective,  286,  288. 
presumption  as  to  ousting  or  creating,  151-160,  522. 

against  summary,  158. 
construction  of  act  not  to  give,  by  implication  over  Indians, 

250. 
creation  of,  by  implication,  155,  156,  377. 
enlargement  of,  by  implication,  199. 
powers  implied  in  grant  of,  419. 
effect  of  usage  as  to,  358. 
doubts  as  to,  solved  in  favor  of,  157. 
not  in  act  intended  to  confer,  disregarded,  157.  _ 
when  not  given  by  legislative  assumption  of  existence,  373. 

given  by  such  a^sumj)lion,  377. 
new,  avoidance  of  construciion  which  would  create,  155. 
not  extended  by  construction,  157. 
or  special,  strict  construction  of  act  creating,  351 
how  to  be  exercised,  430. 
special,  acts  conferring,  160. 


816  INDEX. 

[The  reference  is  to  sections.] 

JURISDICTION  {continued). 

special,  constitutional  provision  conferring,  526. 

given  as  between  certain  parlies  is  confined  to  them,  118. 

onsier  of,  by  implication,  153,  420  ». 

presumption  against,  by  constitution,  522. 
conferred   by  statute  in  certain  cases  not  taken  away  by 

general  act,  224. 
construction  of  acts  intended  merely  to  apportion,  122. 
presumption  against  narrowing  established,  122  n. 
to  enforce  execution  of  conveyance  not  taken  away  by  act 
declaring  decree  for  deed  to  operate  as  convevance, 
419  71. 
certiorari  for  excess  of,  152  and  note, 
want  of,  not  cured  by  act  validating  sales,  385. 
j}id(fment,  order,  sales,  &c.,  mean  those  made  with,  385. 
acts  void  for  want  of,  when  not  validated,  115. 
words  going  to,  never  directory,  432. 
cannot  be  given  otherwise  than  act  directs,  443. 
conditioned  on  impossibility,  443. 
no  waiver  of  want  of,  447.    See  Attachment,  Wages. 
estoppel  against  objection  to,  447  n. 
construction  of  act  making,  depend  on  amount  involved, 

245. 
act  affirming,  of  United  States  Supreme  Court  negatives  as 
to  matters  not  enumerated,  397. 
conferring,  in  all  cases  of  trust  arising  under  deeds,  wills, 
&c.,  122. 
effect  of  absence  of,  in  first  arrest,  116. 
See  Exclusive  Statutory  Rkmkdy,  Failure  op  Justice, 
Florida  Commlssiov,   Injunction,  Justices  op   the 
Peace,  Limited  Jurisdiction,  Orphans'  Court,  State, 
Jurisdictional  powers,  how  exercised,  352,  430.     See  Discretion. 
JURORS,  who  is  party  entitled  to  challenge,  77. 

provisions  relating  to  summoning  of,  directory,  435  n. 
writ  of  attaint  against,  for  false  verdict,  494. 
JURY,  see  Murder. 

Jiis  d'lsponendi,  see  Jus  Tenendi,  MARRIED  Women. 
Just  and  convenient,  114. 

equitable,  406. 
Jus  tenendi  does  not  involve  jws  disponendi,  422,  423.    See  Public  Officers. 
Justice,  147. 

JUSTICE  (see  Equity,  Imperative  and  Directory,  Injustice),  acts  re- 
lating to  administration  of,  108. 
failure  of,  effect  of,  on  cousiruction,  6,  155,  266, 
partial,  334. 
JUSTICE  OF  THE  PEACE,  44,  114. 

and  inferior  courts,  jurisdiction  of,  152. 

appeal  from  judgment  of,  247. 

civil  juiisdiction  of,  152. 

act  foi  bidding  suit  before,  except  in  township^ 

of  defendant's  residence,  122. 
effect  of  death  of,  10. 

increase  of  jurisdiction  on  finality  of 
j  judgment,  112,  152n. 

declaration  of  intent  not  to  appeal 
from,  445. 
long  and  short  summons  by,  213. 
no  jurisdiction  in  cases  of  libel  and  slander^ 

405  n. 
notice  to,  before  suit  against,  297. 


INDEX.  817 

[The  reference  is  to  sections.] 

JUSTICE  OF  THE  PEACE  (continued). 

omission  of  seal  of,  to  deed  of  apprentice,  10. 
power  to  punisli  contempt,  41 'J  and  note, 
refn.sal  of,  to  administer  affidavit,  loG. 
wlien  not  protected  in  acts,  2'.>7. 
ouster  of  jurisdiction  on  affidavit  tiiat  title  of 
I'eai  estate  is  in  question,  "JoO. 
See  Acknowledgment,  Ceutiorari,  Final,  Garnishee 
Process,  Inferior  Coukts,    Limited   Jurisdiction, 
Police  Court,  Power,  Summons. 

Kept  under  proper  control  or  destroyed,  246. 
Killing  of  insured  cattle,  when  Justified,  103  n. 
Knowing  it  to  he  intended,  337. 
Knowiuxjly  and  wilfully,  119  n.,  136. 

suffer,  378. 
KNOWLEDGE,  wiion  essential  element  of  crime,  132-134. 
of  piracy  immaterial,  199. 

illegal  ptirpose  for  wliich  goods  bought,  454. 
See  Constructive  Knowledge,  Ignorance, 
Known  as  government  reservation,  15. 

Labor  claims,  what  not  assignment  of,  350. 
Laborer,  99,  405. 

Laborers  employed  by  subcontractor,  122. 
Lakes,  navijjation  of  the  great,  98. 
Land,  35,  320,  388  and  note,  396. 

in  grant  of  right  of  entry  upon,  to  railroad  company,  3. 
Land  damages,  implied  repeal  between  acts  relating  to,  201. 

warrants,  construction  of  acts  relating  to,  212. 
Landlord,  when  not  liable  as  owner,  96. 

and  tenant  proceedings,  250,  344,  382,  403. 
Landlord's  warrant  not  process,  74.     See  Distress  Warrant. 

strict  construction  of  act  allowing,  344. 
Lands,  320,  414. 

and  ttnements,  320. 
rectories,  advowsons,  tithes,  211. 
Lands,  act  subjecting,  to  sale   on  execution,  retrospective,   287.     See   Beal 

LANGUAGE  OF  ACT,  departure  from,"  8. 

basis  of  interpretation,  7. 

courts  confined  to,  295  n. 

and  intent,  the  same,  8,  509. 

modification  of,  to  meet  intent,  295-319. 

ambiguity  of,  25,  26. 

constrned  with  aid  of  certain  presumptions,  72.     See 

Presumption. 
as  applied  to  subject  matter,  to  be  followed,  72. 
meaning  of,  at  date  of  enactment,  85. 
change  of,  see  Change,  Cognate  Acts,  Constitu- 
tion, Same  Words. 
LARCENY,  intoxication  as  defence,  130. 
reduction  of  grade  of,  238. 
what  is  second  commission  of  offence  of,  284. 
See  Felony. 
Last  anteceiient,  reference  of  general  expression  to,  414,  (see  81,  532). 

proviso  restricted  to,  186  (see  318). 
LATER  acts  and  provisions  repeal  earlier  inconsistent,  182,  183. 

when  not  re|ie.il  of  earlier,  183,  193,  222. 
legislation,  intent  to  repeal  inferred  from,  209. 

52 


818  INDEX. 

[The  reference  is  to  sections.] 

LATER  {continued). 

act,  construction  of  charter  must  accord  with,  354. 
cognate  act,  366, 

constitutional  provisions  in  construction  of  constitution,  517. 
Law,  65,  507. 

of  the.  land,  428  n.,  507. 
or  in  equity,  159. 
— act,  493  n. 
Law,  reference  to,  means  laws  of  that  government  only,  169  n. 

See  Existing  Rule,  Ignorance,  Legislatuke,  Statute  Law. 
Lawful  sense,  words  construed  in,  385. 
Lavfal,  306,  307. 
Laivftdhj  begotten,  171. 
Lawyer,  see  Attorney. 
Ijaying  out,  79. 

LEASE  (see  Real  Estate),  not  a  conveyance  or  incumbrance,  145. 
constrnction  of  act  to  relieve  against  forfeiture  of,  280. 
for  years  and  right  of  way  not  a  bargain,  sale,  mortgage,  &c.,  407. 

selling  liquor  without  license,  453. 
partial  illegality  of,  460. 
Leased  estates,  14. 
Leave  cattle  without  a  keeper,  378. 
Left  or  placed  on  the  premises,  249. 
Legacy,  wliat  not  evasion  of  act  imposing  duty  on,  144.    See  Collateral 

Inheritance  Tax. 
Legal  proceedings,  see  Courts. 
Legal  representatives,  79  and  note. 
Leges  eztra  territorium  non  ohligant,  169. 

posteriures  priores  contrarias  abrogant,  182. 
Legislation,  legislature  presumed  to  know  previous,  53. 
LEGISLATIVE  commmittees,  reports,  &c.,  of,  32. 

construction,  see  Construction,  Interpretation  Clause. 

of  constitution,  527-528. 
declaration  of  construction,  365-377. 
functions  and  powers,  see  Presumptions. 
intimation  of  erroneous  opinion,  372-376. 
journals,  33  and  note. 

judgment,  implied  exercise  and  expression  of,  421. 
pardon,  effect  of  repeal  based  on  idea  of,  238,  478,  483. 
will  to  be  asi^ertained  from  language,  7,  8. 
LEGISLATORS,  constitutional  provision  as  to  pay  of,  631. 
motives  of,  not  inquired  into,  31,  507  71. 
opinions  of,  30. 

cannot  be  shown  to  have  known  existence  of  custom,  362. 
requirement  of  oath  of  allegiance,  &c.,  from,  536. 
disqualification  of,  for  appointment,  508  71. 
LEGISLATURE,  effect  of  indicating  that  special  act  in  mind  of,  at  passage 

of  general,  230. 
misapprehension  or  ignorance  of,  of  former  law, 
207  and  note, 
functions  and  powers  of,  see  Presumptions. 
meaning  of  term  as  used  by  one,  not  conclusive  on  later,  54. 
members  of,  see  Legislators. 

one  cannot  bind  future,  173  and  note,  and  Addenda. 
opinion  of  earlier  not  binding  on  future,  53. 
powers  of,  under  state  constitution,  535. 
practical  construction  of  constitution  by,  527. 
presumed  not  to  intend  unreasonableness,  245. 
injustice,  25S-263. 
absurdity,  264-267. 


INDEX.  819 

[The  reference  is  to  sections.] 

LEGISLATURE  (eonlinued). 

presumed  not  to  intend  impairing  of  conhactor  advantage 
from  wrontr.  '2(37-270. 
to  know  the  common  law,  127  n. 

sense  of  words,  3. 
general  principles  of  law,  367. 
previous  course  of  legislation,  53. 
construction  of  previous  laws,   367. 
to  mean  wliat  it  lias  plainly  said,  4. 
public  improvement,  is  judge  of  necessity,  &c.,  of,  421. 
Legitimation  of  illegitimate  child,  eliect  of,  60,  171. 

void  marriages,  construction  of  acts  for,  108. 
Less  than,  296. 
LETTER,  nothing  is  within,  which  is  not  within  spirit  of  law,  25. 

whatever  is  within  intention  of  makers  of  law,  is  witliin,  414  n. 
extension  beyond,  110. 

when  reason  to  prevail  over,  258.     See  Literal. 
liability  of  master  of  steamboat  for  failure  to  deliver,  132. 
Levari  facias,  writ  of,  is  process,  74. 
Levy,  provisions  relating  to,  imperative,  435. 
Lex  contractus,  169,  174,  177. 
Jori,  177. 

nilfacitfrusti-a,  441  n. 
jubet  frusti-a,   44 1 . 
non  coglt  ad  impossibilia  ant  inutilia,  441. 
vana  sen  inutilia,  441  n. 
intendit  aliqnid  impossibile,  441  n. 
LIABILITY  of  stockholder  for  assessments  upon  paid  stock,  14. 
criminal,  when  more  extensive  than  civil,  135  71. 
acts  conflicting  as  to,  207. 

strict  construction  of  act  subjecting  property  of  one  to,  for  lia- 
bility of  another,  343. 
creating  exceptions  from  recognized, 
350. 
See  Bill  of  Lading,  Common  Carrier,  Corporations,  Exemp- 
tion, Libel,  Occupier,  Stockholder. 
Liable  to  be  sued  {.or,  422. 

draft,  79. 
LIBEL,  construction  of  act  relating  to,  304. 
civil  and  criminal  liability  for,  469. 
See  Apology,  Justice  of  the  Peace,  Newspaper,  Slander. 
LIBERAL  CONSTRUCTION  (see  Beneficial  Constructi^on),  103-112. 

meaning  and  efl'ect  of,  103,  107. 
when   synonymous   with    equitable   construc- 
tion, see  Equitable  Construction. 
of  remedial  and  publicly  beneficial  act,  79  n. 
See  Fences. 
remedial  ads,  107-109. 
required   where   narrow    construction    would 

make  act  unconstitutional,  178. 
forbidden  where  it  would  make  act  unconsti- 
tutional, 179. 
preferred   to    literal,   where   literal   leads  to 

absurdity,  264. 
of  certain  exceptions,  see  EXCEPTIONS. 
revenue  laws,  346. 
mechanics'  lien  laws,  350  n. 
constiiuiion,  526. 
difference  between  strict  and,  329. 
rule  of,  not  abrogated  by  act  requiring  literal 
construction,  329  n. 


820  INDKX. 

[The  reference  is  to  sections.] 

Liberty,  construction  to  favor,  330,  339. 
Libraries,  coustitutional  provision  for,  508. 

LICENSE,  construction  of  provision  that  no,  shall    continue  in  force  after 
January  31st,  298. 
law  not  affected  by  criminal  code  passed  at  same  session,  45. 
question  of  granting,  a  legislative,  not  a  judicial  question,  149. 
discretion  as  to  granting,  how  exercised,  149,  150. 
when  grounds  of  refusal  must  be  staled,  148,  425. 
provisions  as  to,  held  directory,  439. 
sales  without,  456. 
dealings  without,  457. 
not  staling  names  of  all  partners,  457. 
See  Discretion,  Lease,  Liquok,  Marriage,  Municipalities,  Wine- 
grower. 
Lien,  see  Judgment. 

of  debt,  see  Trust. 
LIENS,  general  act  as  to  divesting  of,  by  judicial  sale,  no  repeal  of  special,  225^ 
'  construction  of  act  giving  to  workmen,  &c.,  127,  850  and  note, 
act  requiring  recording  of  vendor's,  prospective,  275. 

giving,  for  purcbase  money,  held  retrospective,  287. 
when  impliedly  created,  417. 

revival  of,  by  ratification  of  suspended  laws,  477  n. 
Life  estate,  see  Forfeiture. 
Ziigkl  and  unjust,  119. 
Lighting  streets,  418. 

Limitation  of  general  terms  by  context,  &c.,  see  Generai.. 
LIMITATIONS,  plain  meaning  of  language  not  to  be  subjected  to,  17. 
conviction  after  bar  of  statute  of,  9. 
whether  defence  of  statute  of,  is  vested  right,  279. 
literal  construction  of  statute  of,  9, 
of  appeal,  9. 

discovery  of  cause  of  action  after  bar  of  statute,  9. 
effect  of  concealment  of  cause  of  action  on,  9. 
implied  or  equitable  exceptions  from  statute,  9  n.,  324. 
act  relating  to  judgment  become  dormant  not  an  act  of,  70. 
no  exception  from  statute  to  be  made  by  construction,  17. 
statute  of,  not  suspended  by  war,  494. 
equitable  restriction  of,  324. 
extension  of,  326. 
when  binding  on  stale,  164  and  note.     See  Gov- 
ernment. 
whether  of  forum  or  of  contract,  177  n. 
relating  to  indenture  of  paupers,  321  n. 
as  to  real  rights  extending  to  analogous  cases,  327  n. 
applicable  to  one  court  adopted  by  other  to  avoid 

unreasonableness,  248. 
effect  of,  on  rigiit  of  dower,  275  n. 
retrospective  operation  of,  284,  287. 
prospective  operation  of,  279. 
strict  construction  of,  343. 

not  astutely  construed  to  take  away  defence,  416  n. 
exceptions  in,  liberal  construction,  343. 
construction  of,  by  usage,  358. 
whether  application  of,  depends  on  form  or  sub- 
stance of  act,  343. 
acknowledgment  to  take  debt  out  of,  383. 
acts  creating  new,  or  changing  existing,  prospective,  279. 
extending  period  of,  retrospective,  287. 
construction  of  two,  216. 

an  exceptional,  250. 


INDKX.  821 

[The  reference  is  to  sectionfi.] 
LIMITATIONS  {continunl). 

of  lime  in  judicial   proi;eedings,  waiver  of,  445  and  note. 
See  AcKNOWLKUOMENT,   JS'kvv   Pkomisk,  Statute  of  Limi- 
tations. 
LIMITED  jurisdiction,  act  conferring,  construed  liberally  as  to  procedure, 
108  r,.. 
partnerships,  included  by  any  person  or  corporation,  87. 

strict  construction  of  acts  relating  to,  350,  384. 
Limits,  see  City. 

LIQUOR,  proiiibitiun  of  all  sale  of,  includes  sale  as  medicine,  17,  (see  note), 
election  on  question  of  perniitiing  sale  of,  not  included  in  election. 

100  «. 
prohibiiion  against  selling  during  hours  of  religious  service,  208. 
liability  for  selling,  to  minor,  132  n. 
sale  of,  by  agent,  135. 
what  is  selling,  without  license,  139,  213. 

sale  of,  where  licensing  prohibited,  is  not  sale  without  license,  213. 
olTence  of  selling  without  license  or  on  Sunday,  255. 
license  for  selling,  to  be  drunk  off  premises  only,  144. 
act  empowering  justices  to  alter  hours  for  sale  of,  in  any  district,  150. 
prohibiting  sale  of,  by  sample,  &c.,  174  «. 
forbidding  one  convicted  of  felony  to  sell,  284. 
punishing  sale  of,  304. 

giving  damages  to  wife  for  sale  of,  to  husband,  371  n. 
sale  of,  in  one  state  for  use  in  another,  454  and  note.     See  Sale  by 

Sample. 
implied  repeal  between  acts  relating  to,  205,  239.  ' 

none  by  act  covering  whole  sultject,  &c.,  of  act  un- 
der which  license  might  be  granted  to  cer- 
tain time,  212. 
between  certain  acts  relating  to,  213,  214. 
of  local  act  by  general,  227. 
See  Adulteration,  Distillery,  Drunkenness,  Intoxicatiok, 
Lease,  Sunday,  Wine 
LITERAL  COi^JSTRUCTlON  (see  Letter),  1-24. 

of  constitution,  507-508. 
followed  at  e.xpense  of  intent,  10. 

though  injustice  result,  11, 
not  avoided  bv  doctrine  of  secondary  mean~ 
ing,  244. 
to  exclude  rare  case,  263  n. 
inadequncy  and  limits  of,  25. 
when  departed  from,  113. 
rejected  where  absurd,  2t)4. 

to  accomplish   purpose  of  act,  295n. 
interpretation  of  act  requiring,  329 n. 
Loan  of  credit  by  municipalities,  521,  538.     See  Public  Money. 
Loaning,  when  included  in  given,  338. 
Loans,  79. 
Local,  502  71.,  507  n. 
LOCAL  act  as  lo  liens,  225. 

acts,  50 i,  503.    See  Private  .\cts,  Special  Acts. 

strict  construction  of.  350. 
authorities,  construction  of  acts  delegating  powers  to,  352. 
meaning  of  terius  used  in  statute,  84. 
option  election  held  not  an  election,  100  n. 

act,  502  n. 
public  acts,  502. 

repealing  act,  when  a  nullity,  216  n. 
statute,  see  Acts. 


822  INDEX. 

[The  reference  is  to  sections.] 

Locomotives,  335. 

Logical  consequeaces,  see  Consequences. 

implications  limited  to,  422. 
Long  account,  155. 

Long  and  sliort  summons,  act  relating  to,  213. 
Li)r>l  Coke's  rules  of  construction,  27  and  note,  29. 
Lord's  d  ly,  see  Sunday. 
Loss  of  life,  330. 
Loss  of  records  by  fire,  441  n. 
Lost  iiisiruuient,  what  is  not  copy  of,  IS. 
Lottery  or  gift  enter|)rise,  454.  ^ 

reniedie-i  under  act  against,  467. 
Lowest  bidder,  219,  524,  536. 

responsible  bidder,  249. 
Luggige,  w  liver  of  act  entitling  passenger  to  carry  so  much,  444. 
LUNATICS,  omission  to  provide  for  service  on,  not  supplied,  19. 

ill-treatme'it  of,  by  brother  in  charge,  121.     See  IIusBAND. 

act  providing  new  m^iihol  for  ad[uission  to  hospital,  does    not 

change  method  of  appointing  committee,  &c.,  126. 
oflence  of  receiving  two  or  more,  133. 
lands  of,  see  Real  Estate. 
See  Incapacity,  Pauper,  Wills. 

Made,  2S4. 

after  the  passage  of  this  act,  284  n. 
or  suffered  to  comiaae.  334. 
'Magistrate,  see  Justice  of  the  Peace. 
Mugis  valeat  qaam  pereat,  265. 
Magna  charta,  47. 
M'lgatdes  and  noblemen,  400. 
Mail,  what  is  not  ol)structing  or  retarding,  129. 

coniracts,  449. 
Maimed  soldiers,  115. 

Main  intent,  see  General  Intent,  Same  Session. 

Maintenance  of  parents  or  children,  act  empowering  court  to  decree,  does  not 
relieve  poor  distri(;t,  115n. 
See  Married  Women. 
Majority  of  the  voters,  388  n. 
Make  an  agreement  in  writing,  248. 
by-laws,  354  n. 
good  all  damages,  1 20. 

losses  to  depositors,  1 20  n. 
such  order  as  they  may  see  Jit,  315. 
Making  .  .  .  complaint,  247. 
Malefactors,  65. 

Malicious  prosecution,  action  for,  held  property,  75  n. 
Malum  prohibitum  and  malum  per  se,  459. 
Man,  388  n. 

MANDAMUS  to  inferior  court,  when  refused,  150  (Addenda). 
statute  of  limitations  in,  161. 
when  remedy  by,  ousted,  433  ra. 
in  addition  to  statutory  remedy,  464  n. 
Mandatory  and  direciory  provisions,  431-440.     See  Imperative. 
Manors  and  other  royalties,  412. 
Manufactures  of  silks,  83. 

Map  (,see  Evidence]  used  by  leirislature,  when  part  of  statute,  68. 
Margin,  138/1.     See  Gaming,  Wager. 

bond  given  by  way  of,  137. 
Marginal  notes,  effect  of,  in  construction,  60. 
Marine  corps  not  army,  75. 


INDEX.  823 

[The  reference  is  to  sections.] 
Milliner,  90  n. 
MARRIAGE,  whAl fraud  invalidates,  3. 

when,  disqualifies  female  from  voting,  115. 
laws  relating  to,  have  force  only  in  state,  169. 

exception  to  this  rule,  170. 
construction  of  act  making  subsequent,  legitimation  of  children 
previously  born,  171. 
several  acts  relating  to,  without  license,  221. 
act  forbidding  avoidance  of,  after  death,  280. 
relating  to,  303. 
requiring  certificate  of  consent  to,  of  minors, 

437. 
prescribing  formalities  of,  437. 
act  prohibiting,  between  Indians  and  whites,  prospective,  279. 

See  Breach  of  Promise,  Divorce,  Legitimation. 
relation,  legitimate  incidents  of,  not  changed  bv  acts  enabling 
married  women,  123.     See  Husband  and  Wife. 
MARRIED  WOMEN    (see  Acknowledgment,  Anji  Woinan,  Grant,  Hus- 
band, Husband  and  Wife,  Mortgage,  ib'o/e 
and  Sep  irate,  Wife),  47,  75  and  note,  79,  96, 
103,  115. 
acceptance  of  bill   of  exchange  by,  for  payment  of 

third  party's  debt,  139. 
acknowledgment  by,  certificate  of,  10. 

necessity  of  separate,  10  n. 
by  attorney  in  fact,  12. 
through  interpreter,  12. 
conveyance  without,  139,  358  n. 
action,  power  of,  does  not  involve  liability  to,  20. 

enable,  to  act  as  guardian 
ad  litem,  &c.,  1 23. 
rights  and  forms  of,  governed  by  lex  fori,  177. 
attachment  against,  123. 

bastardize  her  issue,  not  competent  to,  as  party,  128. 
bigMmy,  when  guilty  of,  133. 
borrow,  power  of,  to,  418. 
capias  against,  123. 

certificate,  act  requiring  filing  of,  by,  in  business,  212. 
contracts  of,  128  and  note. 

right    to  make,  does  not  involve  right  to 
give  obligation,  422. 
conveyances  by,  statutory  forms  of,  imperative,  434. 
copartnership,  acts  relating  to  right  of,  to  enter  into, 

292. 
deeds  of,  act  authorizing  correction  of  mistakes  in, 
284  w. 
defective,  434. 
deserted,  act  empowering,  to  convey  real  estate,  281. 
earnings,  statutory  causes  enabling,  to  do  business  and 
keep.  407. 
act  giving,  does  not  permit  neglect  of  mari- 
tal duties,  422. 
enabling  acts,  liberal  construction  of,  127. 

ajiply  to,  beA)re  passage,  280. 
femes  soles,  legislature  cannot  make  out  of,  171. 

traders,  118. 
improvements,  riglit  to  contract  for,  418. 
joinder  of  husband,  agreement  to  convey,  without,  139. 
jiis  lenendi  does  not  involve  jiis  disponendi,  422. 
lease  without  husband's  joinder,  145. 


824  INDHX. 

[The  reference  is  U>  seotioii8.J 

MARRIED  WOMEN  (continued). 

limitations,  effect  of  enabling  acts  on  exemption  of, 

from  Rtatuies  of,  209. 
liability  of,  governed  by  lex  contractus,  177. 

to  suit  does  not  involve  bankruptcy,  422. 
maintenance  of  illegitimate  child,  115. 
mortgage  for  husband's  debt,  128,  145. 

under  provision  against  alienation,  139. 
notes,  what  power  to  give,  involves,  418  n. 
partition  by,  as  tenant  in  common,  77  (Addenda). 
Pennsvlvania  act  of  1848,  construction  of,  123,  128, 

303. 
person,  when,  inciude<l  under,  115  n.,  385  71. 
powers  under  certain  acts,  128  n. 
to  own,  use  and  enjoy,  418. 
property  of,  effect  of  declaring,  to  be  theirs  as  if  set- 
tled, &c.,  123,  128. 
rights  over,  governed  by  laws  of  state  where 

acquired,  177. 
effect  of  constitutional  provision  as  to,  520. 
prospective,  acts  relating  to,  held  271,  275  and  note, 

277,  278. 
retrospective,  acts  relating  to,  lield,  287. 
sale,  incapacity  to  make,  does  not  prohibit  gift,  145. 
statutes  relating  to,  construed  as  one,  44. 
surety,  right  to  become,  398. 

prohibition  against  becoming,  128,  139,  145. 
torts  of,  when  husband's,  123. 
waiver  of  statutory  interest  in  husband's  estate,  by 

separation,  &c.,  444. 
who  shall  come  in  the  stale,  321. 
wills  bv,  211,  348. 
Marry,  387. 

Martial  law,  388,  507  n.  See  Same  Offence. 
Masculine  words  including  females,  115,  388  n. 
Master  (see  Apprentice),  criminal  liability  of,  for  acts  of  servant,  135. 

of  steamboat,  see  Letter. 
Master's  fee,  effect  on  enforcement  of  payment  of,  of  act  abolishing  imprison- 
ment for  debt,  14. 
Matter  of  record,  75. 
May  15,  next,  299. 

May,  306,  307,  308,  310,  313,  314,  315. 
be  done,  272  n.,  306. 
have  been  done,  272  n. 
if  deemed  advisable,  315. 

they  believe  that  the  public  good,  .  .  .  require  it,  315. 
Mavor,  see  Oath. 
MEANING  of  the  law  is  the  law  itself,  8. 

nothing  within  letter,  which  is  not  within,  25. 

of  language  not  dei)arted  from  by  reference  to  circumstances,  29. 

to  be  sought  fir  in  statute  itself,  72. 

of  terms  differing  in  different  localities,  84. 

at  date  of  enactment,  85. 
doctrine  of  secondary,  in  penal  acts,  244. 
all  parts  of  act  yield  to  carry  oiit  declared,  266. 
clear  or  expressed,  prevails  over  technical,  rules  of  construction, 

295. 
words  not  wrested  from  their  proper  and  legal,  because  super- 
fluous, &o.,  386. 
same  and  different  in  same  words,  387.     See  Same  Word. 


INDEX.  825 

[The  reference  is  to  sections.] 

MEANING  {continued). 

of  some  expressions  fretiuently  used  in  statute,  388-395. 
certainty  of,  see  Ckrtainty. 
Meaningless  enactments,  24.    See  Inoperative,  Insensible. 

act  not  to  be  treated  as,  205. 
Means  of  enforcement,  statute  implies,  4i)3.     See  Implied  KEMEDlfts. 
Measures,  act  concerning!:,  operative  only  in  state,  169. 

See  Buyer,  Scales,  VVeiohts  and  Measures. 
MECHANICS'  LIEN  against  leasehold  applies  whether  lease  oral  or  writ- 
ten, 14. 
what  notice  re(iuired  to  sul)ject  property  to,  78. 
who  are  laborers  within  statute  for,  99  and  note, 
implied  repeal  between  acts  relating  to,  201. 
local  act,  not  repealed  by  general,  228. 
for  claims  under  contract  made  before  act  for,  280. 
not  within  ju(l(/menli<,  344. 
law,  liberally  construed,  127,  350 n. 
strictly  construed,  350. 
construction  of  a,  405. 
waiver  of  limitation  in  favor  of  owner,  444. 
effect  of  repeal  of,  480. 
See  Structure. 
Medicine,  liquor  to  be  used  as,  17  and  note. 
Meeting,  115. 

Meetings  of  directors  and  other  officers,  429. 
Members  of  corporations,  see  Corporations,  Stockholders. 

legi-ilature,  see  Legislators,  Uepresentatives,  Senators. 
Mens  rea,  129-136.    See  Guilty  Mind,  Ignorance,  Intent,  Knowledge. 
Merchandize,  127. 

Merchants,  peddlers  and  privileges,  533. 
Merchants,  usages  among,  362  n. 
Merger  of  original  act  in  amendment,  196. 
Message,  see  Governor. 
Metals,  412. 

Mileage,  see  Computation  of  Distances. 
Millet  held  to  be  grain,  103. 
Mine  or  pit  held  to  be  a  structure,  73  n. 
Minerals  imder  street,  372. 
MINORS  not  rendered  competent  by  act  requiring  recognizances,  115. 

authorizing  all  persons  to  make  wills, 
115. 
included  in  any  married  female,  115. 
exception  in  favor  of,  by  consiruction,  249. 
act  forbidiling  suit  on  ratification  after  majority  of  contract  by, 

2SU. 
prohibiied  employment  of,  in  factories,  449. 
See   Billiard    Hall,   Discharge,    Exceptions,   LiquoR,   Mar- 
riage. 
Minutes  (see  Journals),  requirement  of  signature  of,  by  judge,  437. 
Mirrors,  see  Play's. 

Misapplicaiion  of  pirblic  moneys,  prevention  of,  151  n.    See  Public  Money. 
Misapprehension  of  law,  134. 

by  legislature,  effect  of,  207  and  note. 
Miscegenation,  see  Marriage. 
MISCHIEF,  aia  not  construed  to  work,  43  7i. 

duty  of  couri  to  construe  statute  so  as  to  suppress,  103. 
all  cases  within   are  witliiii  remelial   influence  of  penal  act,  339. 
See  Lord  Coke  s  Rules,  Public  Miscjiief. 
Mischiefs  of  defective  legislatitm,  court  cannot  cure,  18. 

reference  to,  in  consiruction  of  coustituiion,  518. 


826  r.vDHx. 

[The  reference  is  to  sections.] 

Mischievous  effect  of  statute  not  controlled  by  construction,  6. 

enactnaent,  see  Conskquknces. 
Misdemeanor,  75,  79.    See  Quality  of  Offence. 
Misdescription,  see  Street. 
Misrecitals,  see  Misreferences. 

MISREPERENCES  in  amendment  to  section  amended,  302. 
to  date  of  siatule,  302,  319  and  note, 
and  misreciiais  in  acts,  302. 
MISTAKE,  not  a  will/id  ofJence,  119. 
not  inserted   by,  157. 
leo;islali()n  founded  on,  372-377. 
Mistress,  conveyance  bv  married  man  to  his,  37(5  n. 
MODERN  STATUTES,  equitable  restriction  of,  324,  325. 
usage  in  (■oiisiruction  of,  359. 
tendencv  as  to  rule  of  strict  construction,  339. 
MODIFICATION  lo  escape  implied  repeal,  21.')-217. 

difft-rence  between  repeal-and,  240 7i. 
of  prior  by  later  act,  2-10. 
criminal  statutes,  295. 

language  of  statute,  295-319.    See  Reference,  Trans- 
position. 
constitutions,  507  and  note. 
Money,  held  property,  75  n. 
Moneyed  corporation,  186. 

Monopolies,  strict  construction  of  acts  creating,  349. 
M.mth,  389. 

MORTGAGE,  foreclosure  of,  by  advertisement   where  mortgagor  insane,  17. 
when  held  alienatinc),  139. 
not  an  assigriment,  75,  145. 

a  conveyance,  145. 
included  by  deed,  293. 
act  f()rl)iddii)g  ejeclinent  under,  before  foreclosure,  275. 

allecting  wife's  iticiiotte  interest  in  husband's  lands,  con- 
siriie<l  as  not  ali'ecting  existing,  275  n. 
by  wife  for  husl)and's  debt,  see  Mariiied  Women. 
to  national  b..».ik,  see  National  Bank. 
for  purchase  money,  see  Purchase  Money. 
Mortgagee,  held  pia-cha^er,  75  and  note. 

only  bona  fide,  f)rolei'ted  by  recording  acts,  117. 
Mortgages,  failure  of  corporation  to  kee()  registry  of,  438. 
Mortgagors  and  mortgagees,  act  giving,  right  to  join  in  petition  for  damages, 
287. 
may  waive  statutory  provision  postponing  suit  on  mortgage  for 
one  year,  444. 
Mortmain,  statute  of,  111,  140.     See  Bequests,  Charities,  Trusts. 

what  does  not  fall  within  staiute  of,  144. 
Mother  (see  Married  Women),  evidence  of,  against  putative  father,  10. 

fiaudulent  removal  of,  of  bastard,  141. 
MOTIVES  of  legislators,  31,  507  n. 
absence  of  corru()t,  134. 
act  puiiishitig  without  corrupt,  463. 
when  !io  excuse,  136. 
Mouths  of  the  A  llama  ha,  103. 
Midtifariousness,  see  Bills,  Title. 
Muliipliciiy  of  words,  386,  531. 
Municipal  and  other  corporations  and  individuals,  518. 

corporations,  508. 
MUNICIPAL  corporations  included  under  any  borrower,  14. 

when  not  witiiin  coii.yatutional  provisions  as  to  cor- 
uoraliuns,  532. 


INDKX. 


827 


I  The  reference  is  to  Hcctions  ] 

MUNICIPAL  (continued). 

corporations  not  persons,  89,  165n. 

incluiled  by  plaintiff  and  defendant,  104  n. 
exempt  fnjin  attachment  process,  165  n. 
authority,  eflect  of  change  of,  247. 
sewers,  act  relating  to,  437. 
See  Officers,  Oudinanues. 
MUNICIPALITIES,  act  giving,  ri-lu  to  resulate  bay-windows,  261. 

bonds,  prohiliition  against  selling,  at  less  than  par,  139. 

See  Bonds. 
borrow,  power  of,  to,  418  n. 

involves  rigiit  to  give  bonds,  422  n. 
boundaries,  effect  of  extension  of,  122,  420. 
charters,  special,  not  repealed  by  general  laws,  228. 

and  special   acts    when    repealed    by  general 

laws,  230  and  note, 
amendment  of,  507  7i.     See  Amendment.   ■ 
credit,  constitutional  provisions  against  loaning^  521. 
damages  against,  act  allowing,  for  loss  of  life,  277. 
elections  of,  act  relating  to  sheriH's  duty  tis  to,  209. 
improvements  by,  assessnients'for,  on  property  holders, 
101,  220,  3o2. 
notice  of  assessment  for,  see  Notice. 
indebtedness  of,  constitutional  provision  as  to  increase 

of,  524,  532. 
insurance  companies,  right  to  claim  percentage  from, 

28171. 
liability  for  appropriation  of  property,  518. 
licensing  vehicles,  3o2. 
limitations,  statute  of,  165. 
powers  to  straighten  creek,  226. 

construction  of  act  delegating,  to,  351. 
implieil  from  grant  to,  418. 
of  sale  do  not  involve  exchange  or  barter,  422. 
when  to  be  exercised  only  on  petition,  434. 
property  of,  not  subject  to  eminent  domain  in  corpor- 

ations,  162. 
railroads,  right  to  donate  funds  in  aid  of,  352. 
subscribe  for  stock  of,  427. 
special  acts  relating  to,  not   repealed    by   general    laws, 

228. 
taxation  of  trades,  etc.,  407. 
vested  rights  as  ;igainst  state,  none,  284. 
wliaif,  duly  of  repairing,  4-4. 
See  Assessments,  att.vchmksts.   Boroughs,   Classifica- 
tion, Councils,  Estoppel,  OkdinancilS. 
Murder,  S,7o. 

Murder,  provision  that  degree  of,  to  be  found  by  jury,  37,  219. 
no  implied  repeal  between  certain  acts  relating  to,  238. 
See  Fines  and  FoRFEiTURiis,  Husband-murder. 
Mutilation  of  enacting  clause,  494. 
Mutiny,  129. 

Name,  see  Corporation,  Omission,  Partnership. 

NATIONAL  BANK,  act  prohibiting  loans  in  excess  of  one-tenth  of  capital 
Block,  137,  459. 
not  within  any  bunk  in  a  state  law,  169  (Addenda). 
powers  of,  as  to  taking  mor  gage-*,  397,  450. 
eflect  of  excess  of,  397,  450. 


828  INDEX. 

[The  reference  is  to  sections.] 

NATURAL  equity,  see  Equity. 

gas  companies,  350  (Addenda),  353. 
laws,  see  Presumption. 
Nature  and  cause,  520. 

character,  298. 
Navigable  river,  see  Obstruction. 
Navigating,  3S2. 

the  waters  of  the  state.  262  «. 
NAVIGATION  (see  Sailing  Rulks)  of  the  great  lakes,  98. 

grant  to  build  bridge  does  not  permit  obstruction  of,  251. 
by-laws  relating  to,  352. 

company,  held  a  transportation  company,  404. 
Navy  not  army,  75. 
Necessai-y,  524  ti. 
Nearer  or  more  commodious,  305. 
Nearest  antecedent,  see  Last  Antecedent. 
Nearest  justice,  114. 
Negative  statutes,  implied  repeal  by,  198.     See  Implied  Repeal. 

affirmative  inter  se,  217. 
Negligence,  no  implied  protection  for,  423. 
Negotiable  instrument,  sue  Draft,  Indorser. 
Neighborhood  or  fiunily,  103. 

NEW  (see  Modern)  duty  or  cause  of  action,  exclusive  remedy  for,  154. 
jurisdiction  not  extended  or  confined  by  construction,  157. 

how  exercised,  430.     See  Jurisdiction. 
liabilities,  acts  imposing,  prospective,  277. 
ofTences  of  same  class,  time,  &.C.,  of  trial,  112. 

remedies  for  exclusion,  470. 
proceedings,  incidents  of  common  law  procedure  extended  to,  154 
promise,  284. 

remedies  not  extended  or  confined  by  construction,  157. 
right,  remedy  given  for  enforcing,  exclusive,  470, 
rule,  introduction  of,  shows  intent  to  repeal  old,  201. 
things,  extension  of  remedial  statute  to,  112. 

exclusion  of,  by  rule  of  strict  construction,  335. 
trial,  249. 

refusal  of,  in  criminal  case,  not  subject  of  exception,  125. 
act  relating  to,  inapplicable  to  pending  causes,  289. 
construction  of  act  regulating,  299. 
NEWSPAPER,  34o.     See  Apology,  Religious  Paper. 

proprietor  and  editor  of,  lial)le  for  libel  in,  135. 
publication  of  iniended  application  for  cliarter  in,  139. 
change  in  date  of  publication,  389. 
New  street,  365  n. 

Next,  33,  247,  299,  489  n.    See  Last. 
app'dnted,  10. 

before  some  suit  or  action,  10. 
.  .  .  most  convenient,  247. 
of  kin,  3,  77,  80  n. 
session,  351. 
Next  of  kin  include  only  legitimate  persons,  3. 

may  be  included  b,7  legal  representatives,  79. 
Nitre,  sweet  spirits  of,  when  not  spirits,  83  n. 
No,  15,  2 Hi. 

court  shall  intermeddle,  152. 
such  militiamnn,  62. 
Nominal  plaintiff,  see  Government. 
Non  est  intt'.rpret'ilio,  sed  divinatio,  quce  recedit  a  litera,  325. 
NON-RESIDENTS,  construc;tion  of  act  giving  jurisdiction  between  citizens 
and,  157.  , 


INDEX.  829 

^rhe  reference  is  to  sections.] 

NON-RESIDENTS  (continued). 

service  on,  16\)  (Addenda). 
security  for  costs,  see  Costs. 
Non-performance,  see  Duty,  J.mpIjIkd  Kkmedy,  Remedy. 
Non-user,  whether,  can  have  efiect  of  repeal,  494—495. 
Nor,  381. 

Noscuntur  a  soclis,  400-403,  532. 
Not,  157,  265,  302. 
exceeding,  296. 

in  the  penalti/  payable  and  conditioned  as  prescribed  by  law,  1 10. 
less  than,  291,  397  n. 

one,  nor  more  than  three  hundred  dollars,  299. 
par,  139. 
Notary  public,  statute  validating  acts  of,  292. 
Note  not  bad  because  bond  required,  218. 
Notes,  418  n. 

Nothing  in  said  act  shall  be  construed,  &c.,  216. 
Notice,  74,  105  n.,  330. 

left,  etc.,  35,  249. 
NOTICE,  service  of,  means  personal  service,  74. 
means  personal  notice,  105  «. 
when  personal  intended,  74,  330. 

required,  429. 
oral  notice  mennt  by,  78. 
recpiired,  35. 
sufficient,  3o  n. 
inconvenience  in  serving,  when  no  excuse,  13. 
act  requiring,  by  innkee[)er  imperative,  434. 
what  is  not,  Irft  or  placed  on  the  premises,  249. 
when  not  a  right,  220. 

requirement  of,  in  summary  proceedings  presumed,  262. 
acts  curing  d-efects  in,  292. 

allowing  constructive,  262. 
statutory  service  of,  434  n.    See  Non-resident. 
of  action  for  anytliing  done  includes  omission,  104. 
appeal,  effect  of  oaiit.sion  to  give,  11,  435. 

given  by  attorney,  when  sufficient,  105. 
effect  of  death  of  appellee  on  requirement  of,  441,  443^ 
may  be  waived,  445. 
assessments,  436. 
defect,  when  to  be  given,  424. 

expiration  of  lime  f\)r  redemption  when  excused,  441  n. 
intended  a()plicati()n  for  borough  charter,  139. 
needed  repairs,  when  required,  424. 
objection  to  voter,  434  ?i. 
special  meetings,  352,  429. 
See  Change  of  Name,  Computation  of  Time,  Construction,  Injunc- 
tion, .Judicial  Notice,  Justice  of  the  Peace,  Publication, 
Religious  Paper,  Ke.moval,  Voter. 
Notice  and  complaint,  29. 

hearing,  when  required,  50  n.,  423. 
Notify,  35  n.,  78. 
Notwithstanding  any  act  or  thing  whatsoever,  116. 

local  custom,  230. 
Nova  constitiitio  fufwis  forniam  imponere  debet,  non  prcelentis,  271. 
Noxious  drug,  see  Drug. 
Now,  489  71. 

OT  hereafter,  276. 
NUISANCE  (see  Gas  Companies,  Smoke),  common   law  remedy  not  re- 
pealed by  penal  statutes,  236. 


830  INDEX. 

[The  reference  is  to  sections.] 

NUISANCE  (continued). 

ciiiuiilative  remedies  for,  4G7. 

sii)j;le  piinisliiuent  f(ir,  2-14. 

cuiiJ'iriictioii  of  act  aulliorizinj?  abatement  of,  385. 

master  liable  for  commission  of,  by  servant,  13^. 

action  for,  abated  by  statute  legalizinj^,  283  71. 

pre\'ention  of,  is  not  suppression  of,  334. 
Null  and  void  to  all  inte)its  and  purposes,  2(59. 

NULLIFIC.\TIOX  OF  SrATUTE  (see  Defkat),  to  be  avoided,  265. 

result  of  construction,  385. 
for  want  of  form  of  procedure,  443. 
Nullum  tempiin  oecumt  rei  publicte,  167. 
Number,  see  Pi.URAL,  Singular. 

Oath,  338.    See  Suitors'  Test  Oath. 

OATH  (see  Affidavits)  reijuired  to  be  administered  by  the  court  or  judge, 

105. 

mayor,  437. 
of  principal,  when  insufficient  if  made  by 
agent,  106. 
power  to  administer,  implied,  41',)  ?i. 
of  allegiance,  consiitiitional  provision  as  to,  536. 
OBJECT  of  act  (see  Defeat,  Lokd  Coke's  Rules,  Scope)  to  be  effectuated,  29. 
not  to  be  gathered  from  expression  of  legislators,  30. 
language  construed  to  harmonize  with,  73. 
may  supply  une.xpressed  condition,  102. 
restriction  of  acts  to  their  special,  to  avoid  implied  repeal,  211-214. 
construciion  of  constitutional  provision  with  reference  to,  518-519. 
Obligation,  75  and  note,  381,  383. 
of  record,  381. 
or  other  security,  302. 
Obligations,  implied,  424,  430.     See  Duty,  Married  Women. 
Obscene  publication,  oH'ence  of  sale  of,  136. 
Obscure  and  incoherent  later  clause  not  a  repeal  of  clear  and  explicit  earlier, 

183. 
Obstruct,  337. 

and  retard  the  mail,  129. 
Obstruction,  nuisance  or  annoyance,  406. 

OBSTRUCTION  of  highway,  private  right  of  action  for,  473. 
injunction  lo  restrain,  151 7i. 
of  any  quay,  wharf  or  landing  place,  340. 

navigable  river,  private  right  of  action  for,  473. 

process,  74. 

turnpike,  remedy  for,  153  71. 

civil  and  criminal,  liability  for,  469. 
See  Highway,  Navigation. 
Occasion  of  enactment,  27,  28. 
Occupied,  95,  383. 
Occupier,  95,  103,  163  ti.,  411. 
Occupier,  out-going,  10,  62. 
Occupy,  95. 
Of,  302. 

Offences  (see  Joint  and  Several),  not  created  by  implication,  329. 
remedy  prescribed  for  new,  exclusive,  470. 
effect  of  repeal  of  act  creating,  478-479,  483. 
Offenders  against  the  law,  65. 
Office,  see  Continuance,  Re  election. 
OtBce-holder,  see  Removal. 
Office-bours,  act  relating  to,  365  n.,  392  n. 
Officer,  90  n. 


INDKX.  831 

[The  rcfcreiicie  is  to  scetioiia.] 
Officers,  70,  264,  512. 
OFFICEKS  not  in  actual  possession,  not  occupiers,  95. 

refusal  of,  to  perform  duties  imposed  upon,  136. 

audit  accounts,  136. 
in  citizens'  clotlies,  assault  u[)on,  133. 

limits  of  discretion  conferred  on  public,  148.     See  Powers. 
act  allowing  removal  of,  for  cause,  148.     See  Removal. 
of  stale  included  by  acfent,  166  n. 
statute  conferring  powers  on,  refer  to  those  of  same  government, 

169  71. 
construction  of  act  speaking  of,  by  titles,  178. 
fees  of,  part  of  costs,  347  (Addenda). 
acts  conferring  special  ministerial  powers  on,  352. 
provision  as  to  salaries  of,  507  n.,  508,  521,  527.     See  Salary. 
OFFICIAL  bonds,  remedy  on  defective,  HO.     See  HoNDS. 
construction  of  act  relating  to,  381. 
time  for  filing,  436. 
usage,  360. 
OUh'M  in  commission,  514. 
Old  law  (see  Lord  Coke's  Eules),  construction  of  new  law  as  near  use  and 

reason  of,  as  possible,  113. 
OMISSION  (see  Change  of  Language)  of  words  changes  sense,  199. 
of  requirement  of  notice,  220. 

words  not  supplied,  16,  18-22,  384. 
rendering  act  inoperative,  22. 
from  revisions,  202,  203,  384. 

amendment,  176  and  Addenda. 
re-enactments,  51. 
in  penal  act,  334. 

treatment  of,  in  act  under  strict  construction,  336. 
in  body  of  constitution  not  supplied  from  schedule,  513. 
in  new  constitution,  531  n. 
may  be  supplied  by  context,  39. 

of  material  words,  when  supplied,  297  and  note,  380. 
supplied  by  inierpolatiun,  298-300. 
correction  of,  317-318. 
when  insignificant,  379,  380. 
caution  as  to  sup|)lying,  295  n.,  317  ti. 
to  give  notice  of  appeal  may  secure  delav,  11. 
of  seal,  10. 
aflidavit,  10. 

directory  duty,  remedy  for,  440. 
to  paint  name  on  business  place,  453,  457. 
Omitted  when  included  in  done,  104. 
Omnibuses  or  vehicles  in  the  nature  thereof,  352  n. 
On,  247. 

read  or,  319  n. 
conviction,  302. 
his  oivn  premises,  97. 
or  b'fore,  436. 

proof  of  demand  and  non-payment,  428. 
the  master's  appearance,  267. 

principles  of  justice  aiid  good  faith,  147. 
true  faith  of  a  Christian,  376. 
One  (read  one  hundred),  299  n. 

day  previous,  534. 
One  partv,  see  Particular  Partt. 
Only,  431. 

Opening  (streets),  22. 
Operation,  115,  385. 


Sr>,2  INDEX. 

[The  reference  is  to  sections.] 

OPERATION,  every  word,  &c.,  to  be  construed  as  intended  to  have  some,  23. 
depending  on  vote  of  people,  principle.s  of  cuntruciioii  i.f  ait, 

888  71. 
postponement  of,  499.    See  Commencement.  Postponkmkxt. 
Operative,  99. 
Opinion,  108  n. 

OPINIONS,  legislative  intimation  of  erroneous,  372-376.     See  Erronkous. 
when  judges  required  to  give,  426.     See  License,  Kea.so.ns. 
provision  requiring  judges  to  give,  on  everv  question  in   record, 

536. 
of  legislators,  30. 
legislatures,  53. 
Optima  est  legum  iaterpres  consuetudo,  357. 
Option,  see  Operation 
Or  and  and,  903-305,  381.     See  Power.  ' 
not  and.  24. 
read  on,  319. 
Or— nor,  381. 
Ordered,  338. 
Orders,  385. 

Orders  partly  good  and  partly  bad,  460. 

OKDINANCES  (see  Municipal,  Resolutions),  void,  not  validated  by  act 
declaring  in  full  force  all  ordinances  in  operation,  115. 
certiorari  to  suits  under,  152. 
not  presumed  to  be  contrary  to  charter,  180  n. 
application  of  presumi)tion  against  unreason  to,  245  n. 
requiring  notice  to  be  left,  etc.,  construction  of,  249. 
held  prospective,  271. 
must  be  reasonable,  352. 
saving  of  all,  in  operation,  385. 
act  re(juiring  recording  of,  432. 

rights  under,  acquired  before  amendment  of  charter,  485. 
not  aflected  by  repeal  and  re-enactment  of  act  whereunder 
made,  490. 
of  section   of   charter   under   which 
passed,  490  n. 
not  laws,  507  and  note, 
violating  constitution,  538. 
Ordinary  callings,  269. 
luggage,  378. 
Ordinary  meaning  most  generally  in  harmony  with  intention,  78. 
preferred,  78,  79. 
See  Commercial  Terms,  Popular  Meaning. 
Original  siatuie,  see  Amendment,  Mkrger,  Revival. 
ORPHANS'  COURT,  proceedings  in,  helil  actions,  11. 
jurisdiction  of,  118,  153,  157. 
etlect  of  act  authorizing,  to  appoint  trustees  of  absentees* 

estates,  120. 
discretion  of,  as  to  security  on  appeal,  225. 

to  direct  issue  devisavit  vel  nan,  307. 
Other  article  or  thing,  409. 
articles,  410. 
building,  406. 

buildings  and  hereditaments,  408. 
business,  405. 

trades,  avocations  or  professions,  407. 
cattle,  412. 
cause,  407. 
conveyance,  407. 
craft,  405. 


INDKX.  ^'•^•^ 

[The  reference  is  to  sections.] 
Other  documents,  408. 

either  of  them,  304. 
erection,  or  enclosure,  405  n. 
errors,  407. 
grain,  410. 
laborers,  405. 
material,  418. 
metaU,  412. 
mi//,  4 1 0  n. 

moneyed  corporation,  112. 
obstruction,  naijjance  or  annoyance,  406. 
officer,  410.  . 

person,  405,  406. 
personal  actions,  247  (yldc/enda). 
persons,  408. 
j9/ace,  408,  410. 

places  of  business  or  amusement,  407. 
product,  4ii6. 
property,  406,  407. 
royaltiet,  412. 
specialties,  405. 
s/a/f,  169  {Addenda), 
tenement,  406. 
tAtV/  iit  action,  407. 
waters,  412. 
wjor^,  408. 
Otherwise,  407. 

offend  in  the  premises,  336. 
provided,  219. 
On.ster,  see  JuRISDICTIO^f,  REMOVAL. 
Out-door  relief,  428. 

Oit/  o/  /Ae  county,  or  city,  or  town,,  of  his  residence,  334. 
Overseer  not  a  laUorer,  99. 

construction  of  act  pimishins:,  for  absence,  129  n. 
Oversight,  see  Ca.stts  Omissus,  Erroneous,  Ojviissiok. 
Owned,  18;.  508. 

\ised  and  enjoyed,  418. 
Owner,  96,  181.     See  Pledgee,  Transferee. 

and  all  persons  having  any  estate  or  interest  (in  building  destroyed),  103 

and  note. 
of  a  vehicle,  178. 
or  parly  interested,  96. 
Owner  of  stolen  mare  entitled  to  reward  for  apprehending  thief,  14. 

Paid,  345. 

Painting,  see  Copyright,  Photography. 
Par,  189. 

Parainoant  object,  see  GEXERAiy  Intent. 
Pardon,  see  Legislative  Pardon. 

Pardons,  statute  of  limitation  as  lo  prosecution  is  not  a  statute  of,  279. 
Parents,  77.     See  Maintenance. 

Pari  materia  (see  Acts),  statutory  and  constitutional  provisions  in,  construed 
together,  181. 

comparison  of  acts  in,  may  prevent  later  from  repealing  earlier,  183. 

acts  in,  construed  togeiiier,  203. 

penal  as  well  as  remedial,  356. 

use  of  same  phraseology  in  later  act  in,  367. 

recourse  to  acts  in,  involves  recourse  to  construction,  367. 

construction  of  one  act  in,  when  authority  in  construction    of 
other,  368. 

53 


834  INDEX. 

[The  reference  i3  to  sections.] 

Pari  materia,  superseded  constitutional  provision  in,  in  construction  of  consti- 
tution, 517. 
See  ANAI.OQOUS  Acts,  Cognate  Acts,  Rules  of  Court. 
Parish,  42. 
Park,  o4U. 
Parliamentary  iiistory  of  enactment,  30-33. 

law,  see  Same  Sessiox. 
Parochial  relief  and  other  alms,  401. 
PARTIAL  iip[)r()priation,  see  STREAM, 
illej^aiity  of  contract,  460. 
statutory  remedy,  466. 
unconstitutionality,  588. 
validity  of  order,  460. 
PARTICULAR  act,  later,  controls  prior  general,  216.     See  SPECIFIC, 
customs,  362. 

and  general  enactment  on  a  subject  in  same  act,  399. 
exception  not  a  repeal,  216. 
expressions,  expan.sion  of,  by  construction,  37. 

when  not  allowed  to  exclude  general  intent,  111, 

216. 
some,  frequently  used  in  statute,  388-395. 
forms  of  words,  see  Same  Phraseology. 
intent  not  to  defeat  general  and  paramount,  111. 

or  provision,  construed  as  exception  to  general,  216. 
parties,  restriction  of  general  language  to,  137.     See  Penal 
Laws. 
effect  on  contract  of  act  operating  on,  458,  459. 
provisions  in  constitution,  effect  of,  on  general,  515  ft. 
result,  effect  on  contract,  of  act  declaring  a,  458. 
subject,  general  legislation  on,  gives  way  to  special,  399  71. 
act  on,  incorporating  provision  of  general  act,  233. 
Particular  state,  38. 
PARTITION,  whether  included  by  action,  74,  77  (Addenda). 

construction  of  act  allowing  court  to  tax  costs  and  fees  in,  100. 
jurisdiction   in,  153,  157.     See  Common  Pleas,  Orphans' 
Court. 
Partners,  act  exempting,  from  individual  liability,  350. 
PARTNERSHIP  (see  Accounts,   Firm  Name,   Limited  Partnership, 
Married  Women)  in  pawnbroker  business,  453,  457. 
sale  of  liquor  by,  license  not  statiiig  all  names,  457. 
Parts  of  act,  comparison  of  various,  27.     See  Context. 
Party,  74  and  note,  77,  626. 

against  whom  an  appeal  was  decided,  77. 
chargeable,  52,  383. 
Party,  impossibility  arising  from  acts  of,  442. 

See  Incompetency,  Married  Women,  Particular  Party, 
Witness. 
structure,  act  authorizing  raising  of,  120. 
walls,  171. 
Passage,  38,  181,  272  and  note,  388,  497  n. 
Passages,  see  Repugnant  Clauses. 

Passenger  on  ship  is  person  gone  to  sea,  12.     See  LuGOAQE. 
Past  tense,  prospective  operation  in  spite  of,  82. 
Patentee,  act  allowing,  to  file  disclaimer,  prospective,  278. 
Patent  law,  295  n.,  361. 

PAUPERS  (see  Poor,  Poor  District),  acts  forbidding  guardians  to  furnish 
goods  to,  73,  212,  244. 
removal  of,  duty  and  liabilities  of  officers  in,  249,  299,  301. 
act  allowing  decree  for  support  of,  249. 
relating  to,  construed  pros{)ective,  274. 


INDEX.  835 

[The  reference  is  to  sections.] 
PAUPEKS  (continued). 

state  and  town,  321  n. 
construction  of  act  relating  to,  428. 

act  relating  to  settlement  and  maintenance  of  lunatic,  423. 
Paving  tax,  see  Exemption. 

Pawnlnoker,  violation  of  act  that  name  to  be  painted  over  shop  of,  453. 
PiiyiiieiU,  34-1. 
Peddler,  unlicensed,  456. 
Penal  jurisdiction,  when  conferred  by  implication,  377. 

when  not,  &c  ,  373. 
Penal  laws,  508. 
PENAL    LAWS,  what  are.  331. 

acts  which  are  partly,  332-333. 
and  remedial,  distinction  between,  333. 
how  far  revenue  laws  are,  316. 

acts  allowing  actual  or  vindictive  damages,  held  to  be,  347  n. 
rules  of  construction  of,  337.    See  EQaiTABLE  Construc- 
tion. 
difference  between  construction  of  remedial  and  of,  329. 
strict  construction  of,  329-339. 
construction  of  provisos  and  exceptions  in,  332. 
all  cases  wiilun  mischief  of,  are  within  remedial  influence 

of,  339. 
insensible,  24. 
designating  particular  classes  subject  to  penalty,  exonerate.s 

others,  397. 
punishing  killing  while  engaged  in   unlawful  act,  not  re- 
pealed by  act  punishing  killing  by  ceriain  menns,  224. 
relating  to  crimes  generally,  not  re[)eal  of  those  relating 

to  crimes  by  particular  class,  225  71. 
amendment,  not  repeal  of,  195. 
instance  of  local,  repealed  by  general,  231. 
implied  repeal  between,  235-244.     See  Implied  RepeaIi. 
eflect  of  change  in  locality  and  other  incidents  of  punish- 
ment, 237. 
distribution  of  penalty,  237. 
qu'aliiy  and  incidents  of  offence,  238. 
preservation  of  degree  of  crime,  240. 
modification  instead  of  repeal,  240. 
repeal  by  statute  covering  whole  subject  matter,  241. 
effect  of  savings  in,  484. 
proceedings,  see  Pending  Proceedings. 
PENALTY,  nature  of,  to  enforce  payment  of  tax,  281.     See  Percentage. 
effect  of  infliction  of,  on  contracts,  450.     See  Contracts. 
remission  of,  does  not  render  contract  legal,  488  n. 
when  contract  not  invalidated  by,  455  m.,  458. 
recoverable  by  party  aggrieved,  is  compensation,  470. 
act  imposing  new,  on  defaulting  lax-payer,  prospective,  277. 
action  for,  where  several  agy;rieved,  257. 
person  first  suing  for,  has  right  to,  257  w. 
no  vested  right  in,  before  juiigment,  257  n. 
right  to,  not  reduced  to  judgment,  destroyed  by  repeal,  281. 
act  giving  half  of,  to  informer  does  not  authorize  suit  in  his 

name,  422. 
effect  of  change  in  degree  of,  239. 

distribution  of,  237. 
presumption  against  intent  to  impose  double,  239  n. 
doctrine  of  secondary  meaning  to  avoid  double,  244. 
consttuciion  avoiding  double,  253-257,  259. 
act  apparently  itnposing  double,  416. 
See  Imprisonment. 


836  INDEX. 

[The  reference  is  to  sections.] 

Pending  action,  prosecution  or  proceedings,  76  and  note. 

prosecutions  and  offences  theretofore  committed,  483.     See  Prosecdtions. 
PENDING  causes,  efi'ect  of  legislation  in  general  upon,  282,  284,  289. 

relating  to  procedure  in,  288-290. 
See  Corporations,  Evidence. 
proceedings,    where   juri.sdiction    depends    on  statute,   effect  of 
re|)e;il  on,  479. 
effect  of  repeal  of  statute  on,  478-487,  482-483.  ^ 
of  penal  nature,  effect  of  repeal  of  statute  on,  478, 
479. 
suit,  see  Ignorance. 
Pension  laws,  80,  115. 
PERCENTAGE,  acts  allowing  addition  of,  331  and  note. 

added  for  non-payment  of  tax,  entitled  to  same  preference 

as  tax,  345  n. 
repeal  of  act  prevents  col- 
lection of,  483. 
Performance,  (see  Plays,  Theatre)  of  contract,  effect  of  act  rendering,  ille- 
gal, 461-462. 
Periodical  recurrences,  394. 
Perjury,  334. 
PERMISSIVE  WORDS  when  merely  permissive,  310,  314.  ^ 

construed  as  imperative,  306-317,  430. 
effect  on  construction  of,  of  express  reference  to  dis- 
cretion, 315. 
whether  imperative,  is  question  of  intention,  312. 
party  not  interested  cannot  claim  impert- 
Uve  effect,  314. 
Person,  44,  77,  115,  166  w.,  167,  385.  387,  396,  405,  406,  519. 
^must.,'.red  into  the  servize  of  the  United  States,  90  n. 
or  body  corporate,  396. 
persons,  165  n.,  2o:-5,  254. 
grieved,  257. 
Personal  and  local'acts  when  and  when  not  repealed  by  general,  227. 

liability,  see  Directors,  Stockholders. 
Personal  luggage,  378. 
Personal  presence,  when  required,  429. 
Personal  property,  75  n. 

PERSONAL  property  (see  Foreigner)  included  under  any  properly,  15. 
governed  by  law  of  domicile,  174. 
what  i.s  place  of  sale  of,  174  n.     See  Sale  BY  SAMPLE. 
qualifications,  etlect  of  absence  of,  on  contract,  456. 
service  of  citation,  when  excused,  442. 
Personating  any  person  entitled  to  vote,  334. 
Persons,  70,  87,  88,  89,  90,  251. 

(ai)plied  to  one  party),  319 n. 
belonging  to  a  ship,  90. 
interested,  96  n. 
Petitions,  effect  of,  in  construction  of  statute,  68. 
Petroleum,  365  n. 
Pews,  103,  120. 
Photography,  112,  335,  337. 
Phraseology,  change  of,  378-384.     See  Change. 
variation  in  constitution,  531. 
See  Cognate  Acts,  Same  PHRASEOLoay,  Same  Words. 
Phrases  frequently  used  in  statutes,  some,  388-395. 

construction  of  various,  see  Particular  Phrase  to  be  Construed. 
Physicians,  44,  282. 
Pigeons,  119. 
Piloting,  act  requiring,  258. 


INDKX.  S37 

fTlie  reference  is  to  sections] 
Pilots,  10,  11,37,350. 
Pipes,   hiyins,  under   public   road,  519.      See   Easement,   Natural    Gas, 

Strkets. 
Piracy,  73,  97. 

Piracy,  construction  of  act  concerning  literary,  199. 
/Vrtce,  410,  411. 

of  abode,  94. 
Place  of  business  may  be  abode,  94. 
Places  of  public  resort,  400. 

PLAIN  import  of  language  not  controlled  by  earlier  acts  in  pari  materia,  53. 
language  to  be  simply  obeyed,  72.  507. 
meaning  not  to  be  departed  from,  17  n. 
Plaintiff,  164  ?i.,  251  n.     See  Appeal,  Defendant. 
Plant,  root,  fruit  or  vegetable  production,  406. 
Platform,  riding  on,  350. 

Plavs,  construction  of  act  prohibiting,  without  license,  139. 
Pleading,  acts  shortening  time  for,  2>S5,  486.      • 

and  practice,  statute  to  be  construed  consistently  with  system  of,  127. 
Pledgee  of  stock,  wlieu  its  owner,  96,  181. 

Pledge  (see  Kegistry)  of  household  goods  by  agent  in  possession,  118. 
Plural  includes  singular,  388. 

Poker  chips,  452.  

Police  (see  Officer)  court,  construction  of  grant  of  exclusive  jurisdiction  to, 

152  n. 
Police  regulations  and  needful  by-laws,  418. 
Policy  of  the  law,  128. 
POLICY,  effect  in  construction  of  statute,  5. 

of  previous  acts  in  pari  materia  not  controlling,  53. 
no  waiver  as  against  pul)lic,  446. 

existing,  of  statutes  not  changed  by  new  constitution,  520. 
See  Equitable  (Jonstrugtiom,  Insurance. 
Poll,  right  of  minority  to  demand,  115. 

time  of  keeping,  open  directory,  438. 
POOR  (see  Pauper)  act  punishing  officers  charged  with  care  of,  for  furnish- 
ing goods  to,  73,  212,  241.     See  Workhouse. 
district  not  relieved  from  care  of  poor  by  act  authorizing  court  to  de- 
cree support,  218. 
See  County,  Maintenance,  Taxes. 
Popular  meaning,  76-80,  507-503.    See  Commercial  Terms. 
Portwardens,  342. 
Possession,  44,  139. 

Possession  of  grantor  in  bill  of  sale  when  not  possession  of  grantee,  139. 
Possibility,  wife  cannot  mortgage  a  mere,  as  estate,  123. 
Post-dated  checks,  4!.8  n. 
Posthumous  relation,   100. 

Postmaster,  liability  of.  for  fiiliire  to  deliver  letter,  469. 
POSTPONi'^MENT  of  cotumencement  of  act,  effect  on  fornaer,  242. 

operation,  4S9,  500.     See  Future  Date,   Suspen- 
sion. 
operation  of  repealing  act,  effect  on  offences  against 
repealed,  483. 
Poundkeeper,  258. 
Powder,  see  Gunpowder. 
Power  and  authority,  30(). 

POWEK,  to  bring  action  against  persons  claiming  adverse  title,  extent  of,  15. 
See  Interest. 
ptirchase  any  property,  15. 
magistrate,  when  not  power  to  successor,  18. 
of  officer  to  take  acknowledgment  and  proofs  of  conveyance  of 
lantls  outside  of  his  jurisdiction,  18. 


838  INDEX. 

[The  reference,  ia  to  sections.] 
POWER  (continued). 

of  attorney,  held  to  be  a  contract  to  sell,  139. 

pres!iiii[)tio()  against  construclion  permitting,  abu.se  of,  146-150. 

conferreil  to  be  exercised  according  to  discretion  in  each  case,  149» 

implied  repeal  between  ai;ts  raising  conliict  of,  207. 

grant  of,  conditioned  on  different  tilings,   207. 

to  order  dog  to  be  kept  under  control  ur  destroyed,  246. 

of  appointment,  what  is  execution  of,  284. 

discreiioiiMry  and  jnrisdiciional,  how  exercised,  352. 

cannot  be  delegated,  3o2  and  note. 

exercise  of  delegated,  3')2-353. 

strict  construclion  of  acts  delegating,  352-353. 

to  make  by-laws  for  certain  piir|)oses  does  not  authorize  the  doing 

of  the  thing  wiihont  by  law,  354  n. 
implied,  of  corporations,  418. 

in  grant  of  jurisdiction,  419. 
protection  in  grant  of,  423. 
only  absolutely  essential,  423. 
conditions  in  grant  of,  428-429. 
to  allow  amendments  imi)lies  duty  to  do  so,  307. 
judicial  or  public,  is  duty,  430. 
statute  giving  new  and  prescribing  method  of  exercise,  imperative, 

434. 
granted  by  stattite,  to  be  exercised  in  manner  prescribed,  439. 
usnr(»ation  of,  528. 
implied  constitutional,  535. 
of  legislat.nre,  see  Presumption. 
See  Fr.auoulent,  Joint  Power,  Judicial  Power,  MuNiciPAiiiTiES, 
Rights. 
PRACTICE  of  law,  acts  relating  to,  103.    See  Procedure. 

and  pleading,  statute  to  be  construed  consistently  with  system  of, 

127.  , 

under  a  statute,  when  important,  357. 
construction  of  statute  by,  3)7-361. 

constitution  by,  527-528. 
See  Contemporaneous  Exposition,  Costs,  Procedure,  Rule. 
PREAMBLE,  nature  and  etlect  of,  in  construction  of  statute,  62-06. 
referred  to,  to  identify  subject  matter  of  enactment,  ,63. 

to  explain  motive  and  meaning  of  enactment,  63,. 
410. 
referred  to  in  enacting  clause,  63. 

to  ascertain  sense  of  word  used  in,  and  in  enact- 
ing clause,  350  {Addenda). 
recitals  in,  375  and  noie. 

cannot  control,  enlarge  or  restrain  clear  provisions  of  act,  64-66.^ 
when,  may  restrain  enactment,  66. 
eQ'ect  of  defective  or  repugnant,  66. 
to  constitution,  511. 

matters  similar   to,  see   COMMITTEE,  GOVERNOR,  HEADINGS, 
Maps,  Petition,  Repo.rt. 
Precedence,  see  Judgments,  Preferences,  Priority. 
Preceding,  249. 

Pre-einpiion,  homestead,  &c.,  rights,  116. 

PREFERENCE.S,  act  prohibiting,  in  assignments,  124,  138,  145,  342. 
strict  construction  of  acts  forl)idding,  342. 

giving  to  certain  classes  of  credi* 
tors,  350. 
in  distribution  of  intestate's  estate,  412. 
Preferred,  29,  76. 
Premium  notes  in  insurance  company,  act  relating  to,  344. 


INDEX.  839 

[The  reference  is  to  sections.] 

P)  'jrogative,  see  Government,  State. 

Pi  ascription,  none  against  government,  164  n. 

Pijsence  of  two  wilnessei^,  20,  44. 

Presence  of  all  persons  jointly  charged  with  judicial  duty  required,  429. 

See  lilLECTioN  Officers. 
Present  at  the  meeting,  115. 

support,  lOl. 
Present  openition  of  statute  using  future  tense,  82.     See  Future  Tense. 
President  of  manufacturing  company  not  a  laborer,  99. 
PRESUMPTION  against  absurdity',  2tjl,  267,  341,  509,524. 
abuse  of  power,  146-149,  150. 
change  of  law,  needless,  113-128,  530. 
constituiion,  violation  of,  178-181,  523,  524. 
conlract-*,  impairing  of,  267-270. 
defeit  object  of  statute,  intent  to,  265. 
double  piniislunent,  239  ?i.,  244,  253-257. 

taxation,  260  n. 
evasion,  intent  to  {)ermit,  138-145,  521. 
excess  of  legislative  functions  and  powers,  171-173. 

state  powers,  Ac.,  523. 
existence  of  an  intent,  strict  construction  resulting 

from,  168. 
extra-territorial  operation,  169,  335. 
foreigners,  intention  to  legislate  as  to,  abroad,  176. 
future  legislatures,  intent  to  bind,  173. 
government,  intent  to  affect,  161. 
implied  repeal,  210-244. 

inconsistency,  182,  258  n.     See  Implied  Repeal. 
inconvenience,  251-252,  524. 
injustice,  intent  to  do,  258-263. 
limits  of,  263,  266. 

absurdity,  inconvenience,  &,c.,  iu  consti- 
tution, 524. 
international  law,  intent  to  violate,  174,  175. 
limits  of,  175. 
,  judicial  functions,  intent  to  invade,  172.      See  Cu- 
KATiVE,  Declaratory. 
jurisdiction,  narrowing  of,  122  n. 

ousting  or  creating,  151-160. 

of,  by  constituiion,  522. 
language  to  be  construed  by  aid  of  certain,  72,  113. 
natural  laws,  intention  to  violate,  171. 
notice,  intention  to  authorize  proceedings  without, 

262. 
personal  and  property  rights,  intent  to  encroach  on, 

340. 
private  rights,  intention  to  interfere  with,  without 

compensation,  251. 
retroaction,  271-294,  525. 
retrospective  taxation,  260  and  note. 

operation  when  iiuipplicable,  280,  281, 
283-293,  284,  285. 
rights  granted  by  statute,  intention  to  encroach  upon, 

341. 
summary  jurisdiction,  158. 
surrender  of  public  rights,  161,  356. 
unconstitutional  design  no  warrant  for  construction 
contrary  to  language,  180. 
•  unreason,  245,  2")0. 

ap|)lication  to  ordinance,  245 n. 


840  INDEX. 

[The  reference  is  to  sactions.] 

PRESUMPTION  (continued). 

against  unreason,  «fec.,  caution  in  application  of,  266. 

wrong,  permitting  advantage  from  own,  267,  270. 
as  to  curative  and  declaratory  laws,  291,  293. 
from  scope  and  specific  purpose  of  act,  113-137. 

subject  matter  and  object  of  enactment,  73-112. 
in  favor  of  constitutionality  of  act,  524. 

prospective  operation,  as  to  eflTect  of  repeal  on 
pending  proceedings,  483. 
of  legislative  pardon,  effect  of  repe<il  based  on,  238,  478,  483. 

waiver,  see  Estoppel,  Waiver. 
that  change  of   language  indicative  of  change  of  intent, 
378-379. 
enactments  framed  with  reference  to  equitable  as  well 

as    legal    doc- 
trines, 325. 
rules  of  construc- 
tion, 8. 
force  and  effect  to  be  given  to  every  word  and  clause, 

265. 
legislature  acquainted  with  previous  course  of  legis- 
lation, 53. 
common  law,  127  n. 
existing  state  of  law,  182. 
general  principles  of  law 
and  construction  of  par- 
ticular  statutes,  367. 
does  not  intend    certnin   resulis   leads   to 
modification  of  language,  "295. 
same  words  used  in  same  sense,  53,  367,  370,  514. 
wills  and  contracts  made  with  reference  to  existing 

laws,  274  and  note, 
words  used  in  sense  declared  by  judicial  decisions,  367. 
Prevent  and  extinguish  fires,  418. 

Preventive  jurisdiction,  see  Injunction,  Obstruction. 
Previous,  391. 
Previously,  391  n. 
Primary  elections  (see  Wager)  100  and  note,  335  n.,  338. 

and  literal  sense,  when  departed  from,  113. 
Principal,  act  that  judgment  against,  shall  bind  surety,  retrospective,  287. 
Principle,  see  Existing  Rule. 
Printers,  act  recpiiring,  to  affix  name  to  books,  455. 
PRIORITY  of  acts,  190.     See  Same  Day!  "^ 

in  distribution,  act  giving,  to  certain  liens,  414. 
reiluction  of  s.ilary  does  not  give,  422. 
Prior  law,  see  Earlier,  Old  Law. 
Prison-breaking,  what  is  not,  129,  409. 
Prisoner  can  consent  to  nothing,  446. 

act  relating  to  aiding,  to  escape,  409. 
PRIVATE  act,  section  in,  cannot  repeal  common  law  or  public  statute,  216  n. 
See  Local. 
acts,  503-505.    See  Rroitals,  Special  Privilegks. 
construction  of,  354,  505. 
when  and  wiien  not  repealed  by  general,  227. 
and  special  clauses  not  construe  I  together,  55. 
public,  effect  of,  compared,  505. 
fishery,  131. 

injury,  see  Imperative,  Injury. 

persons,  strict  construction  of  acts  investing,  with  privileges,  354- 
355. 


•  INDKX.  >^41 

[Tlie  reference  is  to  sections.] 
rUlVATE  (continued). 

remedies,  implied,  468-474. 

rights,  consideration  of,  in  construction  of  statute,  251.     See  Pre- 
sumption. I 
rooms,  gaming  in,  witli  friends,  252. 
J'ririlcfies,  530,  533. 
rKl  VILEGES,  acts  conferring  exceptional,  349. 

strict  construction   of   acts  investing   private   persons   with, 

354-355. 
regulations  of  acts  conferring,  imperative,  434. 
Prize.  79,  337  n. 

PKOCEDURE  and  practice,  equitable  construction  of  acts  relating  to,  327, 

_  417  n. 
waiver  as  to,  445. 
failure  of  statute  to  j)Gint  out,  22,  443. 
incapable  of  application,  24,  443 

where  no,  prescribed  and  forms  of  court  cannot  furnish,  443. 
prescribed  by  former  ads  referred  to,  44. 
acts  relating  to,  bind  government,  167.     See  Government. 
held  retroactive,  285-290. 
operation  of,  on  pending  causes,  288-290. 
effect  of,  on  rights  remaining  inchoate,  290. 
.saving  of  civil,  485-486. 

prosecutions  and  rights,  487. 
what  are  acts  affecting,  only,  287. 
constitutional  provisions  relating  to,  525. 
forms  of  jutiicial,  imperative,  435. 
See  Courts,  Imperative  and  Directory,  Limited  Jurisdic- 
tion, Pending  Causes,  Proceedings. 
Proceed  .  .  .  and  delennine,  420  n. 

finally,  381  n. 
Proceeding,  74. 
Proceedings  of  committees,  32. 

terminated  by  repeal  not  revived  by  repeal  of  repealing  act,  475. 
in  equity,  see  Equity. 
in  Orphans'  Court,  see  Orphans'  Court. 
Procrss,  74. 

(when  injunction  not  within  act  as  to),  258. 
Process,  obstruction  of,  74. 

laws  staying  civil,  350. 
Proclamation,  see  Governor,  Commencement. 
Produce,  365. 
Product,  406. 

Production  of  documents,  act  authorizing  order  for,  12. 
Professional  usage,  efiect  of,  in  construction,  358-359. 
Prohibition,  see  Duty,  Liquor,  Contract, 
Promissory  notes  held  noi  properly,  Ion. 
Promoters,  see  Charter,  Corporation. 
Proof,  428.    See  Acknowledgment. 
Proper  county,  38. 

Properly,  12,  75  and  note,  123  71.,  388  ».,  406,  519,  520. 
insured,  108. 
other  than  land,  406. 
owned    by   incorporated   company   over   and   above   their   capital  stock, 

356  n. 
which  [married  women]  may  Iherenfler  acquire,  123  n. 
PROPERTY  (see  Alienation)  of  couvicis,  67. 

implied  ri>;li(  to  injure,  of  others,  423. 

Strict  construction  of  acts  regulating  man's  u«e  of  his  own,  342. 
allowing  taking  of,  343. 


842  iXDKX. 

[The  reference  is  to  sections.] 

PROSECUTION,  when  pending,  76  iind  note. 

eti'ecl  of  dismissal  of,  at  defendant's  costs,  119. 

revival  of,  by  repeal  of  statute  re[)ealing  tliat  which  created 

crinae,  279. 
acts  relating  to  incidents  of,  retrospective,  288. 
effect  of  repeal  of  act  creaiing  crime  on  pending,  478.     See 
Pending  Proceeuing.s. 
where   repealing   act   limited    to    future 
operations,  483. 
savings  of,  484,  487.    See  Procedure. 
See  Indictment,  Revival,  Same  Cause. 
Prospective  (see  Retkoaction)  oper.ttion  in  spite  of  past  tense,  82,  272. 

constitutional  provisions  presumed  to  be,  625. 
Protection  for  acts  done  under,  by  virtue  nf,  etc.,  statutes,  297. 

when  implied  from  power,  duty,  &c.,  42:i. 
Provisions,  73. 

PROVISO  (see  Savings),  repealed,  consulted  in  construing  act,  49. 
unconstitutional,  eli'ei;t  <if,  in  iiiterfiretalion.  Son.,  50  n. 
exception  and  saving  clause,  184-186. 
may  have  eflect  of  suspending  operation  of  statute,  185. 
repugnant  to  purview,  185. 
construction  of,  186,  332,  526. 
restrained  to  iinrnediaie  antecedent,  186  (see  318). 
in  penal  act,  332. 

consliiuiion,  526. 
transposition  of,  318. 

against  deeming  an  act  (un)lawful  which  was  so  before,  376. 
Proximate  cau.se,  see  Causa  Causans,  Remoteness. 
Public— geneni  I,  502  n. 
officers,  69. 
ptoce,  378. 

of  amusement,  340. 
road,  75. 
PUBLIC  and  private  acts,  501-505. 

construction  of,  distinguislied,  505. 
acts,  502, 

body,  construction  of  grant  of  powers  to,  355.     See  Municipali- 
ties, Powers. 
convenience  and   improvement,  acts  in  restraint  of,  349. 
corporations  not  persons,  89. 
duty,  see  Duty. 

embarrassment,  evidence  of,  in  construing  statute,  68  n. 
improvements,  see  AssiossMiiXTS,  Lkgisi.aturic. 
inconvenience,  presumption  against,  in  consti  uction,  251. 

eflect  <if,  on  question  of  imperative  or  directory,  433^ 
mischief,  efi'ect  of,  on  quesiiun  of  irn[)eraiive  or  directory,  433. 
money,  act  punishing  person  participating  in  loaning  of,  153,  470. 
acts  autb(H-izHig  iransfer  of,  Ity  county  commissioners,  218. 
relating  to  appropriation  of,  of  one  year,   to  past  due 
claims,  224. 
remedy  again-t  party  a.ssisting  officer  in  embezzlement,  ex- 
clusive, 470. 
See  Mlsapplication. 
objects,  acts  proinoiing,    108. 
office,  contract  to  give  deputation  of,  452. 
officers,  acts  allowing  courts  to  (Spen,  Ac  ,  accounts  of,  108. 
providing  compensation  for,  109. 
special  acts  as  to  terms  of,  repealed  by  general,  230. 
act  forbidiliiii,',  to  sujiply  goods,  3.{8.     See  Poor. 
strict  construction  of  act  forbidding,  to  i)urchase,  34L 


INDEX.  843 

[Tbe  reference  is  to  sections.] 
PUBLIC  {cmitinued). 

officers,  usage  as  to  salaries  of,  361, 

to  act  as  body  and  when  duly  assembled,  429.     See  Joint. 
statutory  regulaiions  as  to,  lield  directory,  437. 
interested  in  contract  contrary  to  law,  4'')0. 
See  Attachment,    iMPEiiATivE   and   Directory,   Officer, 
Official  Bond,  TiiESPAss. 
opinion  at  time  of  enacuuent  of  statute,  29. 
policy,  see  Poi.lCY. 
property,  when  subject  to  taxation,  17,  163  and  note. 

right  of  eminent  domain  not  extended  to,  lGl-162. 
various  kinds  of,  exempt  from  taxation,  163  and  note. 
reiTiedies,  imiilied,  464-467. 

rights,  strict  construction  of  acts  surrendering,  356. 
road,  no  right  of  settlement  between  township -and  railroad  taking, 

100. 
safety  and  convenience,  grant  to  corporation  subordinate  to  consid- 
eration of,  251. 
trial,  see  Accused. 
Publican,  prohibition  against,  permitting  bad  charactera  to  assemble  and  meet 

loyelher,  ti2. 
PUBLICATION  (see  Obsceme,  Tax  Sale)  of  notice,  omission  to  provide 
method  of,  19. 
change  in  date  of,  of  newspaper,  389. 
of  statu  I  es,  421  n. 
construction  of  act  requiring,  432. 

for  at  least  two  days,  461n      See  COMPUTATION  OF  Time. 
of  notice  of  assessments,  436. 
Punctuation,  33,  61. 
Punishable  in  the  slate  prison,  330  n. 
PUiS'iTiVE    DAMAOES,  construction  of  act  giving,  129. 

acts  allowing,  are  penal,  331-333. 
right  to,  held  unatiected  by  repeal  of  statute,  481. 
See  Repeal. 
Purchase  and  taking  of  lands  otherwise  than  by  agreement,  70. 
Purchase,  strict  construction  of  act  forbidding  attorney,  &C.,  to  make,  341. 
Purchase-money  (see  LiE.v)  mortgage  affdOieJ  by  usury  law  as  loan,  79. 
Purchaser,  75  and  note,  76,  337. 

or  incumhrancer,  79  (Addenda). 
Purciiaser,  only  bona  fide,  protected  by  recording  acts,  117. 

allowance  of  cointuission  to,  of  municipal  bonds,  139. 
See  Buyer,  RiccoitDiNG  Acts,  Title. 
Pare  and  aniidalteruted,  4Ul. 

PURPOSE  of  act,  27.    See  Intej^tiost,  Motive,  Scope,  Specific  Purpose. 
enactment  construed  so  as  to  effect,  29. 

accomplislimeut  of,  may  lead  to  rejection  of  literal  mean- 
ing, 295  71. 
Purview,  1  8-5  n. 

PUTATIVE  father,  right  of  magistrate  to  summon,  under  act,  10. 
evidence  of  mother  against,  10. 
when  parent,  77. 
father,  337. 

Qualification,  531  n. 

elections  and  returns,  527  n, 
QUALIFICATIONS,  personal,  depending  on  payment  of  taxes,  143. 
iinplifd  re[>eal  between  acts  prescribing,  199. 
pi-escril)ed  by  constitution  not  added  to  by  legislature^ 
533. 
See  Brokkr,  Contracts,  Engineer,  License,  Omissions^ 
Peddler,  Personal  Qualifications,  Voter. 


844  INDEX. 

[The  rererence  is  to  sections.] 

Quality  (see  Dkqree)  and  incidents  of  offence,  effect  of  change  in,  238. 
Quando  aliquid  prohibelur,  prohibelur  et  oinac  per  quod  devenilur  ad  illud,  138. 
Quarter  Sessions,  appeal  from  one  to  anotlier,  28. 

See  Certiorari,  Streets. 
Quarter  year,  389. 
Quash,  act  giving  appeal   froiu  judguient  on  motion  to,  held  to  give  appeal 

from  judgment  on  plea  of  abatement,  327  a. 
Quasi  municipal  corporations,  SOS. 
Qui  /licit  per  aliam,  facil  per  «e,  105,  383. 

Qui  tarn  action  (see  Common  Informer,  Penalty),  question  of  implied  repeal 
between  act  giving,  and  act  giving  prosecution  for  same  offence,  2  U  and  note. 
Quo  vMrranto,  act  giving  writ  of  error  to  judgment  of  court  upon,  125. 
to  individuals,  471  n. 
discretion  of  court  as  to  issuing,  125. 
to  try  right  of  member  of  city  coimcil,  420. 
See  District  .A.ttorn'ey,  School  Directors. 

Rnjt,  63. 

Railroad  company,  act  subjecting,  to  parochial  assessments,  21,  299. 

action  against,  in  one  state  for  injury  in  another,  176. 
constitutional    j)rovision   as   to   measure   of  damages 

against,  219. 
act  allowing  damages  against,   for  loss   of  lif.?,   277. 
See  Widow. 

e.xemi)ting,  from  liability  for  accidents,  350. 
failure  of,  to  give  bond,  effect  on  timber  cutting.  129. 
extent  of  right  of  eminent  domain,  161.     See  Public 

Property. 
laying  additional  track  on  highway  in  front  of  plain- 
tiff's land,  126. 
duty  to  reconstruct  public  road  taken  for  bed,  142. 
appropriation  of  track  of  another,  162  n. 
constitutional  provision  as  to  right  of  intersection,  520. 
prohibition  against  running  through  dweliing-house, 

249. 
duty  as  to  crossings,  424. 
when  act  requiring  checking  of  speed  at  crossing  not 

waived,  446  n. 
special  methoil  of  condemnation  of  land  not  repealed 

by  general  law,  229. 
act  giving,  right  to  settle  for  and  obtain  right  of  way, 

100. 
real  estate  of,  when  includes  lands,  buildings,  &c.,  76. 
what  not  property  over  and  above  capital  stock,  356  n. 
includes  street  railway  comp  luy,  76. 
grant  of  right  to  build  road  in  borough,  refers  to  then 

limits,  S5. 
what  is  dwelling  of,  94. 
not  owner  of  leased  palace  cars,  96. 
subsequently  incorfjorated,  subject  to  law  for  regula- 
tion of  all  existing  railroad  corporations,  112. 
acts  relating  to  duty  of,  to  fence,  105,  22U  and  note, 
waiver  of  provision  requiring,  to  fence,  444. 
who  may  sue  for  omission  to  fence,  471. 
liability  of,  for  carrying  powder  contrary  to  statute, 

132. 
cabmen  trespassing  on  property  of,  134. 
liability  of,  for  defective  weiiiliing  machine,  136. 
excep  ion    from  siatuti'  of  limitation  of  notes  of  any 
bmk  or  otber    moneyed   corporation,    does    not 
include,  KS6. 


INDEX.  845 

[Tlie  relereiice  is  to  sections.] 

RAILROAD  (continued). 

company,  act  placing  management  of,  iu  hands  of  certain  num- 
ber of  directors,  137. 
right  to  use  fire  implies  protection  against  liability, 

423. 
what  implied  in  power  to  purchase  land  for  stone, 

&c.,  418. 
right  to  construct  road  on  one  side  of  town  does  not 
imply  right  to  make  temporary  location  on  other 
side,  422. 
rights  of,  on  land  taken  or  ceded  for  road,  423  and 

note, 
power  to  municipality  to  subscribe  for  stock  of,  is 

power  to,  to  receive  subscription,  427. 
power  to  one,  to  purchase  certain  lands  to  construct  a 
road  does  not  involve  power  in  another,  to  sell 
the  land  to  former,  427. 
liability  of,  for  making  a  line  to  another  ferry,  469. 
effect  on,  of  repeal  of  act  authorizing  laying  of  rails, 

479. 
right  to  damages  against,  for  discrimination  in  freight 

by,  held  unaffected  by  repeal  of  statute,  481. 
taxation  of,  21,  226,  299. 
See  Street  Railway  Co  ,  Train  of  Cars,  Viewers. 
stock,  when  not  included  in  any  public  or  joint  stock,  &c.,  335. 
ticket,  a  valuable  security,  338. 
RAILROADS,  elevated  roads  may  be  branches,  79. 

meaning  of  connection  as  applied  to,  79. 
act  relating  to  connection  of,  354. 

autiiorizing  issuing  of  bonds  in  aid  of,  and  other  works,  98. 
giving  counties  right  to  issue  bonds  in  aid  of,  214. 

municipality  right  to  donate  corporation  funds  in 
aid  of,  352,  427. 
what  is  obstruction  of,  337.     See  False  Signals. 
not  yet  opened,  obstruction  of,  337. 
legislature  to  judge  of  necessity  of,  421, 
Raising  structure,  see  Party  structure. 

Rarity  of  case  does  not  exclude  it  from  language  of  statute,  263  n. 
Rates,  Tin.    See  Taxes. 
Ratification,  defective  deed  of  married  woman,  incapable  of,  434. 

of  laws  suspended  revives  liens,  477  n. 
Read  three  times,  508. 
Real  estate,  76. 

broker,  98. 
REAL  ESTATE,  included  by  any  property,  15, 

act  making  long  term  of  years,  has  no  effect  on  reversions, 

122. 
what,  is  subject  to  collateral  inheritance  tax,  174. 
place  of  tMxation  of,  174. 
exclusively  subject  to  lex  loci,  174, 
See  Justice  of  the  Peace,  Limitations,  Married  Women^ 
Tithes. 
Reason,  legislature  presumed  to  intend  what  is,  258. 

See  Lord  Coke's  Rules. 
REASONABLE  doubt  of  meaning  of  penal  act,  330. 

time,  when  allowed,  388,  420.     See  Time. 

when  exercise  of  power  not  limited  to,  20. 
Reasonable  notice,  11. 

strictnexs,  329. 
Reasons  when  to  be  given  for  refusal  of  license,  425.    See  Opinion. 


846  INDEX. 

[The  reference  is  to  sections.] 
Receipt  for  deposit,  345. 
Keceiving  stolen  ^oods,  evidence  of  former  conviction,  20. 

two  or  more  lunatics,  oflence  of,  l'S'6. 
Recent,  see  Moiikkn,  New. 
RECITALS,  375.     See  Headings.  Misrecitals. 
in  private  staiutes,  ."^To  and  note, 
intended  to  have  force  of  enactment,  376. 
preli.Ked  to  particular  section  or  group  of  sections,  67. 
Recognizance,  oS\,  403  (i. 

RliUOGNIZANCE,  certified  copy  of,  where  act  recpiires  certification  of,  105  n. 
See  Copy. 
effect  f)f  act  recpiiring,  on  right  of  corporation  to  appeal, 

111. 
act  requiring,  does  not  render  minors  and  married  women 

capable  of  giving,  115. 
distribuiion  of  proceeds  of,  473.     See  Penalty. 
Record,  75,  403  n. 
Recording  acts,  117,  272,  277. 

estoppel  from  claiming  benefit  of,  448. 
See  Ordinaxce,  Registkation. 
Records,  destruction  of,  by  fire,  441  ;i. 
Recover,  340,  417. 
Recovered,  77. 

Recovery  and  protection,  77  (Addenda). 
Recurrences,  periodical,  394. 

REDEMPTION,  inchoate  rights  of,  how  aflected  by  legislation  as  to  proced- 
ure, 290. 
from  tax  sales,  construction  of  acts  allowing,  108. 

certain  acts  relative  to,  216. 
act  kept  in  force  for  collection  of  taxes  held  ia  force  for,  327. 
eflect  of  repeal  of  statute  on  right  of,  480. 
See  Notice. 
Reddendum  singuln  aliigulis,  256,  416.  , 

Reduction,  see  Priority. 
Redundant  (see  Special,  Act,  Surpi  usage),  no  word   to  be  treated   as,  23, 

(386),  413. 
Re-election,  failure  of,  438. 

makes  new  office,  508  n.     See  Continuance. 
RE-ENACTMENTS.  194. 

continuation  of  provisions  by,  205. 

not  a  repeal,  in  spite  of  repealing  clause,  222  and  note, 
490. 
(qualification,  491.) 
when  a  repeal,  491. 
omissions  in,  51. 
by  phrase  in  addition  to,  372. 
amendment  of  repealed  act  is  not,  372. 
effect  of,  of  former  section  in  Inter  of  same  act,  490 n. 
adoption  of  construction  by,  368,  371. 

known  judicial  interf)retation,  368. 
construction  of,  when  not  controlled  by  departmental 

usage,  360. 
express,  of  existing  rule  of  law.  Sic.   See  Existing  Rule. 
Referee,  436. 

REFERENCE  (see  Incorporation)  to  another  statute  incorporates  part  re- 
ferred to,  50,  153. 
adoption  by,  adopis  no  subsequent  changes,  85,  233. 
to  laws  means  laws  of  that  government  only,  169  n. 
incorporation  of  words  of  one  instrument  in  another  by,  aa  to 
stamp,  345. 


INDEX.  847 

[The  reference  is  to  sections.] 

REFERENCE  (contmued). 

to  last  antecedent,  414.     See  Last  Antecedent,  Proviso. 
acts,  101,  108,  126,  493. 

adopt  nothing  beyond  purpose  of  new  act,  101  and  note, 
only  general  provisions  of  airl  referred  to,  101  n. 
such  as  will  stand  with  reason  and  right,  101  n. 
general,  not  {)arlicular  powers  of  act  referred 

to,  493. 
those  provisions,  &c.,  which  are  applicable  and 
a|)pr<ipriate,  493. 
adaptation  of  language  of  earlier  act  incorporated  in  later 

by,  108. 
terms  in,  understood  in  primary,  not  assimilated,  sense, 

493. 
liberal  construction  of,  101  and  note, 
eflect  on,  of  repeal  of  act  referred  to,  233,  492-493. 
nioditiciition  of  act  referred   to,  192-493. 
Refusal,  see  Attachment,  Continuance,  Discretion,  Mandamus,   New 

Trial,  Officers,  Quo  Warranto. 
REGISTRATION  acts,  116.    See  Bills  of  Sale. 

construction  of  conflicting,  as  to  deeds,  189. 
contracts  in  violation  of,  450. 
REGISTRY,  pledge  of  certiticate  of  ship's,  450. 
list,  effect  of  invalid,  432 7i. 

absence  of,  of  voters,  432,  441  n      See  IMPOSSIBILITY, 
of  corp  )riition  mortgages,  &c.,  438. 
shareholders,  438. 
Regular  places  of  stdted  worship,  95. 

sessions,  370  a. 
Regulate,  216  (Addenda). 
Regulating  criminal  proceedings,  122. 
Re-instatenient,  see  Ratification,  Revival. 
Relative,  wiiether  refers  to  last  antecedent,  414. 
RELIGIOUS  meeting,  see  Congregation. 

act  forbidding  sale  within  certain  distance  of,  410. 
paper,  pnblicaiion  of  notice  in,  139. 
Remainderman,  literal  construction  preferring,  to  life-tenant,  11.     See  For- 
feiture. 
REMEDIAL  and  penal  statutes,  distinction  between,  107  n.,  333. 

act,  difierence  between  construction  of  penal  and,  329. 
acts,  107-109. 

what  are,  107,  108. 

principle  of,  extended  to  things  not  within  words,  110. 
extension  of,  to  new  things.  112. 
Remedy,  216. 
REMEDY,  inadequacy  of,  not  to  affect  construction,  6. 

provided,  inapfilicabiliiy  of,  to  particular  subject  excludes  it,  37. 

earlier  acts  in  pari  materia  consulted  to  ascertain,  44. 

acts  construed  so  as  to  advance,  103,  107. 

for  injuries  from  exercise  of  right  of  eminent  domain,  154  n. 

statutory,  against  state,  exclusive,  lo4. 

construction  of  acts  creating  new,  155,  351. 

new,  not  extended  nor  unduly  confined  by  construction,  157. 

common  law  incidents  to,  154. 
lerfori  governs,  177. 

act  giving  cumulative,  does  not  repeal  prior,  218. 
cumulative,  464  n.,  466,  467. 

exclusive,  154,  465,  4t)6.     Set*  Exclusive  Statutory  Remedies. 
statutory,  when,  433  «.,  434. 
summary,  held  to  be,  153. 


848  INDEX. 

[The  reference  is  to  elections.] 
REMEDY  (continufd). 

exclusive,  for  new  offence,  470. 

enforcement  of  new  right,  470. 
non-performance  of  new  duty,  470. 
legisiattire  may  provide,  wiierever  a  riglit  exists,  285  n. 
public  and  private,  implied,  463-474.     See  Implied  Remkdiks 
founded  on  statutory,  effect  of  repeal  on,  481-483. 
for  illegal  tax,  see  Taxks. 
See  Duty,  Limited  Jurisdictions,  Lord  Coke's  Rules,  Means  of 
Enforcement,  Procedure,  Right  op  Action,  Remoteness. 
Kemoteness  of  injmy  from  breach  of  public  duty,  473. 

taint  of  contract,  4oS,  459. 
REMOVAL  of  causes,  122.     See  Change  op  Venue. 

cor|)()rate  officers,  strict  construction  of  act  permitting,  351. 
couttty  seat,  530. 
seal,  see  Seal. 
goods  to  elude  distress,  468. 
house  as  nuisance,  &c.,  see  Demolition. 
master,  bylaw  relating  to,  352. 

obstruction,  construction  of  act  giving  power  of,  151  n. 
paupers,  249.     See  Ofpicers,  Paupers. 
power  of,  for  cause,  50  n.,  65,  148. 
Renewal  of  summons,  when  unlawful,  10. 
Rent,  73. 

charge,  80. 
Rent  charge,  grantee  of,  when  deemed  in  po-'isexsion,  44. 
REPAIR  of  road,  on  whom  duty  of,  lies,  424,  467. 
wharf,  duty  of,  in  city,  424. 
bridge  or  lowpatii,  4'.!4. 
liability  of  one  to  keej)  in,  property  in  possession  of  another,  424. 
indictment  for  failure  to  keep  roads  in,  467.     See  Supervisors. 
Mepniis,  346. 

REPEAL,  475-496.    See  Amendment,  Implied  Repeal. 
when  later  act  not,  of  earlier,  183,  193. 
mutilation  of  enacting  clause  not  a,  494  n. 
difference  between  modification  and,  240  ?i 
implied,    constitutional    provision  as    to  repeal    inapplicable    to, 

524  n. 
intention  to,  inferred  from  later  legislation,  209. 
where  not  permitted  in  spite  of  express,  222  and  note,  367  n. 
in  last  section  of  all  actn  and  parts  of  acts,  265. 
construed  as  continualion,  367  n. 
when  re-enactment  is,  491. 

not,  490. 
express,  excludes  implied,  203. 

of  .so  much  an  provides,  203  n. 
effect  of  expressed  intent  to,  206. 
implied,  negatived  by -later  express  repeal,  47. 
of  general  act  not  a,  of  its  provisions  incorporated  in  special,  233, 
492  n. 
special  act  i"  not,  173  71. 
provisions  of  special  act  by  general,  206. 
a  section  in  city  chaiter  does  not  affect  ordinance  passed  under 

it,  490  n. 
act  incorporated  in  another  by  reference,  492-493. 
by  act,  of  all  former  acis  within  its  purview,  205  71. 
express,  of   certain  sections,  repeals  all  previous  acts  identical 

(herewith,  206. 
of  statute  of  limitations,  eff^ect  of,  on  right  to  prosecute,  279,  475  ti.. 
effect  of,  on  proceedings  terminated  by  act  repealed,  475. 


INDEX.  849 

[The  reference  is  to  sections.! 
KEPEAL  (emtiniied). 

effect  of,  on  pending  proceed inj^s,  478-487. 

actions  of  penal  nature  or  statutory  jurisdic- 
tion, 479. 
penal   pn.ceedinKS  based  on   tlieory  of  legis- 
laiive  pardon,  238,  478,  483. 
when  not  construed  to  forestall  or  end  prosecutions,  483. 
effect  of,  on  rights  and  remedies  foumled  on  statute,  480-483, 

of  act  irnposiuii;  tax  ami  pen:iUy,  483. 
destroys   riglit   to   penally  not  reduced  to  judgment,   231.      See 

Punitive  Damages 
does  not  atlect  vested  rights,  481. 
effect  on,  of  savings,  484-487.     See  Saving. 

of  previous  offence  and  penalty  therefor,  173. 
of  act  reserving  right  to  proseiite,  &c.,  484 
effect  of,  on  contracts  in  violation  of  act  repealed,  488. 
of  repealing  statute,  effect  on  original  act  repealed,  475-477.     See 
Kevival. 
does  not  revive  proceedings  terminated  by 
latter,  475. 
act  superseding  common  law,  475. 
amendment  .so  as  lo  read,  475. 

earlier  amendment  of  act  frequently  re-enacted,  &c.,  473  n. 
all  inconsistent,  acts,  205. 
all  local  laws,  475  n. 
act  while  on  passage,  190. 
by  unoonstiiutional  act,  192  and  note, 
time  when,  takes  effect,  489.     See  Po.^tponement. 
whether  non-user  can  have  effect  uf,  491-495. 
KEPEALED  act,  re-enacted,  no  force  except  so  far  as  continued,  48  n. 
portions  of  acts  to  he  considered  in  construction,  49. 
acts  expressly  referred  to,  to  be  consulted,  50. 
act,  amendment  of,  372. 

who  only  can  invoke  aid  of,  486. 
REPEALING  clause  qualified  by  appirent  intention,  43  n. 
effect  of  particular,  368. 
statute,  effect  of  expiration  of,  475. 

suspension  of,  475,  476. 
repeal  of,  475-477. 
and  suspending  acts  passed  at  same  session,  40  n. 
Reporter  of  decisions  of  courts,  how  far  within  copyright  law,  115  n. 
Reports  and  proceedings  of  commiltees,  32. 
Representation  excluded  by  next  of  kin,  80. 

concerning  character,  &c.,  of  another,  48. 
Representatives  (see  Leqai,  Representatives),  constitutional  disqualifica* 

tions  of,  508  n. 
Republication  of  will,  in  what  sense  codicil  is  not,  80. 
Repugnancy,  degree  of  require<l  for  implied  repeal,  210. 

between  different  parts  of  constitution,  515  n.,  516. 
See  Conflict,  I.mplied  Repeal,  Inconsistency. 
REPUGNANT  acts  passed  same  day,  50O. 

clauses  in  act,  selection  between,  by  reference  to  acts  in  pcari 

vutleria,  43. 
clauses,  182,  183-186. 
proviso,  185. 
schedule,  197. 
Required,  372. 
Residence,  94. 

RESIDENCE  (see  Exemption,  Votino)  of  corporations,  &4. 
of  state,  94. 
what  is,  519  and  note. 

64 


850  INDEX. 

[The  reference  is  to  sections. 1 

Rmdent,  91,  92,  93,  91,  519. 

occupier,  439. 
Resides,  141. 
Resolutions  of  legislature,  501  n.,  536.    See  Judicial  Notice. 

councils,  501  n. 
Respondent,  see  Appellee,  Death,  Defendant,  NonResident. 
Keslitutioti  (or  Resioration)  of  goods,  wlien  [trovision  for,  inapplicable,  llfi. 
Restriction,  see  Equitable  Restriction,  General  Language,  So.;.,  Pre- 
amble, Object,  Scope,  Subject  Matter,  &c. 
Restrictions  on  exercise  of  statuiory  right,  court  cannot  impose  additional, 

351.    See  Qualification. 
Restrictive  provision  at  end  of  series  of  sections,  414. 
Resulis,  see  .Absurdity,  Anomalies,  Consequences,  Mischief. 
RETROACTION,  construction  wliicli   would  give,  forbidden  by  constitution, 
inadmissible,  178. 
when  only  unconstitutional  under  federal  constitution,  283. 
presumption  against,  271-294,  483,  525. 
denied  to  acts  apparently  contrary  to  words,  272. 
where  vested  rights  affected,  273-276,  283. 

no  vested  rights  destroyed,  2S4. 
as  to  acts  affecting  rights  of  municipal  corporations,  284. 

giving  exclusive  (concurrent)  in  place  of  concur- 
rent (exclusive)  jurisdiction,  151  and  note, 
imposing  new  liabilities,  277. 
conferring  benefits,  278. 
creating  disabilities  and  limitations,  279. 
one  class  of  persons  only,  284. 
amendments  have  not,  196  n.,  294. 
curative  and  declaratory  laws,  denied  to,  292. 

allowed  to,  293. 
what  not  within  rule  against,  280. 
rule  agiinst,  inapplioable  to  inclioate  rights,  281. 
not  generally  pennitte  1  so  as  to  affect  pending  causes,  282. 
effect  of  presumption  against,  on  effect  of  repeal  on  pend- 
ing proceedings,  282. 
when  to  be  allowed,  283-293. 
as  to,  in  acts  relating  to  procedure,  285-290. 

of  act  requiring  court  to  take  judicial  notice  of  cer- 
tain acts,  501  n. 
Retrospective,  purpose  of  act  may  show  it  to  be  exclusively,  122. 

taxation,  260  u.     See  Exemption. 
Returning  officer,  see  Candidate,  Election,  Judge. 
REVENUE  acts  (see  Taxation),  implied  repeal  between,  243. 

and  appfoi)riation  acts  construed  with  earlier  acts  in  pari  mate- 
ria, 46. 
construction  justifying  evasion  amounting  to  frauds  upon,  252. 
laws,  construction  of,  346.     See  Taxes. 
contracts  in  fraud  of,  457. 
Reversal,  none,  of  order  long  expired,  441  n. 
Reversioner,  see  Re.mainderman. 
Reversions,  see  Forfeiture,  Real  Estate. 
Review,  act  relating  to,  held  inapplicable  to  pending  cause,  289. 

Si^e  Appeal,  Writ  of  Error. 
REVISION,  all  parts  of,  to  be  harmonized,  40. 
viewed  as  one  system,  &c.,  40. 
how  each  chapter  of,  regarded  as  a  statute,  42  ?i. 
effect  of  arrangement,  chapter,  &c.,  headings,  &c.,  in  construc- 
tion of,  6i)-70. 
omissions  in,  of  provisions  of  fornaer  law,  51,  384. 
when  to  be  construed  by  reference  to  acts  superseded,  51,  368  n. 


INDEX.  851 

[The  reference  is  to  sections  ] 
REVISION  (continued). 

CDiistrnction  of  original  statute  embodied  in,  adopted,  368. 
slijcht  departures  in,  from  phraseology  of  original  acts,  3S1. 
sections  last  ad(){)led,  or  portions  transcribed  from  later  statute, 

repeal  earlier  provisions,  183. 
implied  repeal  by,  201-203. 
of  whole  subject  matter  supersedes  common  law,  236  n. 

prior  criminal  law,  241. 
when  continuation  of  acts  incorporated,  203. 
repealing  and  re-enac-tin'^  statutes,  490. 
repeals  common  law,  127,  204,  236  ii. 

act  putting,  in  force  to  be  construed  together   with  act  order» 
ing,  203. 
KEVIVAL  of  common  law  by  repeal,  expiration  or  suspension  of  act,  475. 
judgments,  see  Judgments. 
liens  by  ratification  of  suspended  law,  477  n. 
origiual  law,  by  rejieal  of  re|)ealing  act,  475-477. 

expiration  or  suspension  of  repealing  act,  475, 
476. 
statutory  modification  of  doctrine  of,  476-477. 
proceedings  terminated  by  repealing  act,  none,  by  repeal  of 

same,  475. 
right  to  prosecute,  by  repeal  of  statute  of  limitation,  279,  475  n. 
statute,  effect  of,  on  infringements,  489. 
Revolt  in  a  ship,  129. 
Keward,  see  Owner. 

Riding  and  driving,  construction  of  act  relating  to  furious,  338. 
Riyht^  401,  and  note. 

accruing,  accrued,  acquired  or  established,  485. 
or  remedy,  216. 
RIGHT,  acts  done  in  assertion  of,  131. 

mere  belief  in,  131  n. 
created  by  statute,  time  limited  for  suing  on,  imperative,  468. 
court  cannot  impose  additional  restrictions  on  exercise  of  statutory, 

351. 
express  affirmation  of.  does  not  indicate  former  absence  of,  374. 
in  one  may  imply  duty  in  another,  427. 
right  in  another,  427. 
of  action    (see   Ass.\ult  and   Battery,   Convicts,    Maltciou3 
Prosecution)  for  breach  of  statutory  (iuty,  &c  ,  463. 
lost  by  expiration  of  time  limited  for  asserting  it,  46S. 
for  breach  of  duty,  &c ,  for  benefit  of  particular  party, 

469. 
when   unaff>'cted   by  fact  that  act  is  criminally  punish- 
able, 469. 
remedy  for  enforcement  of  new,  exclusive,  470. 

common  law,  cumulative,  470. 
for  breach  of  public  duty,  471-474. 

violation  of  contagious  diseases  act,  471. 

fencing  act,  see  Railroad  Companies. 
none   in   person  outside  of  class   for  whose  benefit  act 

passed,  471. 
for  obstruction  of  highway,  river,  &c.,  473. 

breach  of  public  duty,  special  and  direct  injury  neces- 
sary, 473. 
when  no  private,  474. 
effect  of  repeal  of  statute  on,  480-  483. 
way,  see  Lease,  Road. 
nights  accrued,  486. 

or  established,  proceedings,  &c.,  487. 
of  properly,  75. 


852  INDEX. 

[The  reference  is  to  sections.] 
RIGHTS,  bill  of,  516. 

strict  construction  of  acts  encroaching  on,  340-343. 
effect  of  repeal  of  statute  on  un[)erfe(:ied,  480,  482. 

vested,  481. 
implied  authority  to  infringe  on  others',  423. 
regulations  of  acts  conferring,  imperative,  434  and  note, 
founded  on  statute,  eti'ect  of  repeal  on,  480-483. 
and  procedure,  effect  of  saving  of  civil,  485-486* 
wiiat  not  within  saving  of  existing,  486. 
and  contracts,  waiver  of  statutory  provisions  as  to,  444. 
no  waiver  as  against  others',  446. 
See  CoMMo:^  La.w  Rights,  Conflicting  Rights,  Implied  Eepeax, 
Powers,  Public  Rights. 
Biver.  378.    See  Fishing. 
Mond  crossings,  446  n. 

ROAD  from,  28  n.    See  From,  Highway,  Repair,  Street,  Tolls. 
laying  of  pipe  line  under,  519. 
when  not  incumbrance,  80. 

indictment  for  failure  to  repair,  467.     See  Supervisors. 
law  of  the,  96. 
law,  447  n. 

effect  of  repeal  of,  417. 
views,  petition  to  be  strictly  followed  in,  435. 
Rondst,  32 1  n. 
Robbery,  3,  75. 
Robbery,  what  is  not,  131. 
Rule  in  equity,  see  Existing  Rule. 

of  law,  see  Existing  Rule. 
RULES,  general,  made  under  act  giving  them  force  of  law,  to  be  consulted,  47. 
of  practice,  wlien  bad,  149.     See  License. 
power  of  court  to  make,  419. 

strict  construclion  of  act  authorizing  court  to  make,  351. 
of  court  in  pari  materia,  46. 

when  not  judgments,  74.     See  Orders. 
Runnimj  away,  leavinq  child  chargeable  to  parish,  48. 
Rural  lands,  effect  of  annexation  of,  to  city,  420. 

Sabbath,  see  Sunday. 

Safetv,  see  Public  Safety. 

Said^ Ali. 

Sailing  rules,  act  imposing  liability  for  failure  to  observe,  137. 

S'dary,  527,  531.    See  Officers,  Priority. 

Salary,  act  grading,  according  to  y)opuiation,  261. 

implied  repeal  between  acts  relating  to,  207. 
S'de  or  transfer  .  .  .  preceding  .  .  .  death  or  insolvency  350. 
SALE,  act  directing,  of  a  person's  property  by  surveyor-general,  122. 

prohibition  of,  is  not  prohibition  of  gift,  145. 

by  sample  or  soliciting  or  procuring  orders,  174  n. 

without  license,  wliat  is  not,  213  (see  456). 

act  relating  to  investment  of  funds  made  on  judicial,  retrospective, 
288. 

statutory  rule  as  to,  under  later  act  applied  to,  under  earlier,  327. 

strict  construction  of  act  allowing,  for  taxes,  343. 

of  public  offices,  452. 

for  illegal  use  in  other  state,  454. 

of  goods  to  be  smuggled,  454. 

for  illegal  purpose,  454. 

in  violation  of  acts  requiring,  in  certain  manner,  455. 

without  license,  456  (see  213). 

by  partnership,  license  not  stating  all  names,  457. 


i^DEX.  853 

[The  reference  is  to  sections.] 
SALE  (continued). 

See  Administrator,  Bargain  and  Sale,  Bills  of  Sale,  Contract, 
Conveyance,   Frauds,  Judicial  Sale,  Liens,  Sukbiff's  Sale, 
Tax  Salls,  Validating  Acts. 
Sales,  act  relatinjj  to  irreo;nlarities  in,  366. 
Saltiion,  see  Found  in  Possession. 
Same,  507  n. 

aulhorily  .  .  as  .  .  .  now  has,  233. 
c(iu-<e,  ^59. 

effect  us  if  passed  after  this  act,  193. 
horses  and  carriages,  3U4. 
manner,  152. 

offence,  116,  259  ti.,  284,  388,  507  n. 
SAME  day,  acts  passed  on,  one  to  take  effect  later,  &c.,  189. 

inconsistent  acts  passed  on,  when,  nullify  each  other,  189. 
repugnant  acts  passed  on,  500. 
elections  on,  539. 
phraseology  in  later  act  in  pari  materia,  367. 

analogous  acts,  S69.    See  Change. 
session,  suspended  and  repealed  acts  passed  at,  40  n. 

acts  passed  at,  43  ra.,  45,  188.    See  Implied  Repeal. 
main  intent  of  conflicting  laws  of,  to  be  effectuated,  210 n. 
subject,  legislature  not  presumed  to  intend  co-existence  of  two  conflict- 
ing systems  oo,  201. 
terms  in  amendment,  370. 

words,  presumed  to  be  used  in  same  sense  throughout  act,  41,  53,  350 
(Addenda). 
different  sense  when  applied  to  different  subjects  and  obiects, 
73,387.  J  J       » 

in  statutes,  370,  371  and  note,  387.    See  Change. 
use  of,  for  same  thing  gives  greatest  precision,  387. 
in  constitution,  514. 
Satisfactory  evidence,  1 1 6. 

BAVl^iG  of  all  definitions  and  descriptions  of  offences  and  all  incapacities,  240. 
ordinances  in  operation,  385. 
effect  of  general  act  for,  173n.,  484  n. 
of  any  right  or  remedy,  216. 

rights  accruing,  accrued,  acquired  or  established,  485. 
accrued,  486. 

or  established,  proceedings,  &c.,  487. 
lawful  rights,  486. 

cause  of  action  already  accrued,  284. 
civil  rights  and  procedure,  485. 
existing  righis,  &c.,  what  not  within,  486. 
right  to  proceed,  487. 

prosecutions  and  rights,  does  not  cover  procedure,  487. 
all  righis  of  suit  or  prosecution  binder  any  prior  act,  &c.,  484. 
suits,  rights,  actions,  prosecutions,  &c.,  526. 
pending  prosecutions  and  offences  theretofore  committed,  483. 
prosecutions  ina|)i)licable  where  prosecution  closed  and  sentence 

pronounced,  484. 
right  to  punish,  repeal  of,  484 7i.  * 

existing  offices  in  constitution,  5137*. 
in  penal  act,  4S5. 

cousiriiciion  of,  in  constitution,  513 n. 
clause,  exception  and  proviso,  181-186. 

as  to  proceedings,  not  extended  to  election,  74. 
repeal  of  special  by  general  act  in  spite  of,  230. 
relates  to  time  of  passage,  not  of  taking  effect,  489  n. 
clauses,  similar  construction  of  two,  where  phraseology  differed,  531. 


854  INDEX. 

[The  reference  is  to  sections.] 

Savings  inMilu'ionn,  44,  396.     See  Building  Associations. 
Scales,  weij^liis  iiiiil  tneiisures,  act  for  inspection  ot,  6iC.,  119. 

li:tl)ility  for  ilefective,  136.  ' 

SCHEDULE,  effect  <T,  in  construing  statute,  71. 
repiii^tiant,  197. 

eH'ect  and  fuiiciions  of,  in  constitution,  513. 
constrnciion  of,  in  constitution,  51*3  n. 

provisions  not  translerred  from,  into  body  of  constitution,  513. 
SCHOOL  directors,  quo  warranto,  &c.,  418 /i. 

districts,  act  curing  irreijularity  in  formation  of,  100. 
treiisurer,  see  Attachment. 
Scliools,  act  rclaiiiig  to  attendance  of  cliildren  at,  212,  218. 

constitutional  provision  as  to  common,  oS.'i. 
Scope  and  specific  piirpose  of  act,  presumption  arising  from,  113-137. 
Scotland,  see  INSOLVENT. 

Sea,  crimes  committed  at,  lfi9,  174.     See  Ships. 
Sea-farit)g  mm  included  in  ab.ienl,  12. 
Seal  (see  CoiiPoRATios),  provisions  as  to,  10,  18,  435. 

offence  of  removing,  from  property  sealed  by  customs  officers,  119. 
Seamen,  90  n. 

Search,  construction  of  act  permitting,  301. 
Second  offence,  2,S4,  388. 
Secomlary  meaninj;,  doctrine  of,  244,  386. 
Secretary  of  treasury,  see  Depaktmextal  Usage. 

war,  usage  in  office  of  361. 
SECTION  headings,  see  Headings. 

niisreference  to,  in  aruendinent,  302. 

general  restricting  provision  at  end  of,  414.     See  General. 
Section  six,  196. 
Security,  338  n. 
Security,  when  real  estate  required  as,  must  be  in  state,  102. 

may  he  waived,  444,  445. 
See  next  page,  348. 

Seeds,  65     S-e  Suqar-Cane  Seed. 
Seeming,  see  Conflict. 

Seized  in  fee  fiimple  or  fee  tail  in  possession,  77. 
Self-crimin  iting  cpiestions,  answers  to,  evidence  in  criminal  proceedings,  417. 

-executing  provisions  of  constitution,  640, 
Sell,  80,  411,  422. 

.  .  .  from,  299. 
Senators,  disqualification  of,  508  n. 
Send,  337. 

Sense,  see  Same  Words,  &c. 

Sep  irate,  see  AcKowLBDGMENT,  Married  Women,  Sole  and  Separate, 
SERVANT  (see  ApptiENnuti),  when  not  inhahilnnl,  91. 
not  in  ai-tual  possession,  not  an  occupier,  95. 
knowled;^e  of,  may  be,  of  master,  lUo. 
alxsenting  himself  from  service,  129. 
master's,  criminal  liability  for  act  of,  135. 
Service  of  notice,  74. 
Service  of   sumin ms   on    absentees,    12.      See    NoN- RESIDENTS,    PebSONAL 

Service,  Summons,  Sunday. 
Session.  508.     See  Same  Session. 
Set,  369. 

apart  and  occupied,  95. 
Set-oti'  held  noi  payment,  344. 
Setllenienl,  73. 

SETTLEMENT,  question  of,  determined  with  reference  to  moment  of  adju- 
dication, 90  n. 
of  bastard,  141. 


INDEX.  856 

[The  reference  is  to  sections.] 
SETTLEMENT  {continued). 

colorable  or  fraudulent  renting  of  tenement,  does  not  give, 

HI. 
prevented  by  hiring  a  few  days  less  than  year,  144. 
act  relating  to  acquisition  of,  383. 
what  is  payment  of  rent  to  obtain,  442. 
none  acquired  by  employment  contrary  to  statute,  449. 
Several  persons  engaged  in  committing  same  offence,  2o3-256. 
penalties  on  all  persons  engaged  in  same  offence,  256. 
Sewer,  authority  to  construct,  what  not  involved  in,  423. 

act  relating  to,  437. 
Shall,  378. 

and  may  be  lawful,  378. 

.  .  .  and  they  are  hereby  authorized  and  empowered,  if  they  shall  so  think 

fit,  306. 
he  at  liberty,  in  their  free  and  unqualified  discretion,  315  n, 
deserted.  82,  271. 
empowered,  306. 
come,  321, 

happen,  be  given,  82. 
go,  75  n. 
have  been,  272. 

done,  82. 
resident,  63. 
poirer  {and  authority),  306. 
resided,  112 
if  they  think  jit,  306. 
include,  36 o  n. 
not  repeal,  477. 
Shareholders  (see  Stock)  cannot  lake  advantage  of  wrongful  neglect  to  pay,  268. 

failure  to  keep  register  of,  438. 
Shares,  failure  to  numl)er,  438. 
SHEKIFF,  words  of  iniieritance  in  deed  by,  when  dispensed  with,  14. 

and  deputies,  act  forbidding,  to  buy  at  their  own  sales,  98,  270. 

effect  of  interpleader  act  on,  126. 

act  allowing  judgment  debt  ir  to  pay  to,  128. 

arrest  of  mail  drivei-  by,  129. 

implied  repeal  between  acis  relating  to,  200. 

act  regulating  suits  against,  287. 

relating  to  bonds  and  recognizances  of,  381. 
allowance  to,  f  u-  boarding  prisoners,  508. 
held  not  a  slate  officer,  519. 
sale,  regulations  as  to,  im()erative,  435. 

legal  formalities  may  be  waived,  445. 
See  Escape,  Munigipai^   Elections,  Officer,  Public    Officeb, 
Trespass. 
Ship,  103. 
SHIP,  casting  away  a,  is  to  destroy,  79. 

built  in  England  for  foreigner,  not  a  British  ship,  116, 
effect  of  loss  of,  on  jurisdiction,  443. 
See  Barratry,  Bill  of  Sale,  Engaged  in  Navigation,  Registbt,  Revolt, 
Unseaworthiness. 
Ship  and  freight,  350. 
Ship  owner,  not  responsible  for  damage  by  act  of  God  or  enemy,  121. 

acts  relating  to  liabiliiy  of,  350,  367. 
Shipping,  law-<  of  state  concerning,  refer  to  waters  of  state,  169.     See  SaUt 

ING  Rules. 
Ships  on  liigb  seas  governed  by  laws  of  state,  169. 

act  f<u-  e.xamiiiation  of,  382.    See  Bottoms,  Vessels. 
Shoot,  cut,  stab  or  wound,  402. 


856  INDEX. 

[The  reference  is  to  sections.! 
Shop,  405. 

Siiurt  and  lon<<  eiiinmons,  act  relating  to,  213. 
Should  have  hud,  27  (i. 

Signature,  see  Bills,  Bo>fDS,  Minutes,  Resolutions,  Sueety,  Wills. 
Signed  at  the  end  thereof,  348. 

by  the  parly  chargeable  thereby,  106. 
Signing  and  subscribing,  acts  requiring,  348. 
Silk  veils,  83. 
Simitar,  507  n. 

Similar  olijects,  statutes  having,  construed  alike,  52. 
Simulianeous  acts,  500.    See  Same  Day,  Session. 
Single  man,  1U3. 
siltijig,  3S7. 
tenement,  103. 
woman,  103. 
Single,  oflence  in  its  nature,  comnoitted  by  several,  254. 

subject,  see  Bills,  Implied  Amendment,  Eepeax,  Title. 
Singular  includes  plural,  388  and  note. 
Sitting,  508.     See  Single  Silting. 
Sittings,  80. 
Six  (see  Section)  successive  weeks,  389. 

weeks  successively,  389. 
Slander,  see  Costs. 
Slave  trade,  170  n. 

contracts,  525  n. 
Small-pox  hospital,  423. 

Smoke,  act  requiring  consumption  of,  by  furnaces,  260. 
So  as  to  read,  196,  294  and  note. 
fixed,  435. 

much  as  provides,  203  n. 
Sojourner,  44. 

Soldiers,  provision  for  maimed,  115. 
Sole  and  separate,  75  and  note. 
Solicitor,  cliarge  on  property  recovered  through,  12. 

act  as  to  agreements  between  client  and,  248. 
Sovereign,  see  Government,  State. 
Spanish  government,  see  Florida  Commissioners. 
Speci'il,  502 n.,  507  n.    See  Particular,  iSpecikic. 

SPECIAL,  conslruciion  (>f  act  relating  to  officers  so  as  to  avoid  being,  178. 
acts,  wiien  and  when  not  repealed  by  general,  223-233. 
im()lied  repeal  between,  234. 

construction  of  seemingly  superfluous  words  in,  386. 
what  are,  502,  503,  504,  507,  521  and  note,  and  Addenda. 
See  Local,  Municipalities,  Private,  Repeal. 
custom,  223  and  note,  227. 
demurrer,  290. 
jurisdiction  (see  Jurisdiction),  act  conferring,  160. 

conferred  by  constitution,  526. 
legislation  by  municipalities  as  to  bny,  &c.,  windows,  261. 

on  particular  subject  overrides  general,  398  n.     See  Par- 
ticular 
attemp  ed  evasions  of  constitutional   provision  against, 

521  and  note,  and  Addenda, 
what  is,  5U7  n.,  521  n. 
meetings,  notice  of,  352,  429. 

privileges,  acts  granting,  to  different  parties  not  construed  together, 
55.    See  Private. 
and  general  acts,  when  construed  together, 
56. 
SPECIFIC  purpose  of  act  includes  what,  417.    See  Particular. 

words,  restrictive  efi'ect,  of  association  of  general  wiiii,  396. 


INDEX.  857 

[The  reference  is  to  aectiona.] 
SPECIFIC  (continued). 

Mords,  fjeneric  added  to,  405-411, 
provisions,  effect  of,  on  general,  216. 
Speeches  of  legislators,  30. 
Spirits,  83  ra. 

Stamps,  acts  relating  to,  221,252.    See  Charter-pabty,  Exemption,  News- 
paper, Receipt,  Reference. 
Stare  decisis,  piipciple  of,  3ti3,  529,  530 n. 
State,  78,  169  (Addenda). 

STATE,  wlien  real  estate  required  as  security  must  be  in,  102. 
includes  its  ships  and  waters,  169,  174. 
statutory  remedy  against,  exclusive,  154. 
not  included  in  general  terms  of  statute,  161. 
prescription  against,  164,  notes  70,  78. 
may  plead  statute  of  limitations,  164 ra. 
is  not  inhabitant  or  occupier,  162  n. 
has  no  residence,  94.     Wee  Creditors  residing,  &c. 
not  included  in  terms  plaintiff,  defendant,  16471. 
when  inckuled  by  person,  89  »i.,  166  n. 
not  a  person  under  statute  of  wills,  167. 

named  in  some  sections  not  necessarily  included  in  others,  166  n. 
laws  of,  where  binding,  169. 

not  understood  to  surrender  any  public  right  or  prerogative,  356. 
See  Certiorari,  Extra  territorial,  Foreign  State,  Frauds. 
STATE  constitutions,  when  laws,  507  and  note. 

difference  between  federal  constitution  and,  635. 
courts,  construction  of  act  conferring  jurisdiction,  160. 

when  the  different,  follow  each  other,  364. 
and  federal  courts,  364. 
State  officer,  519. 

State  prison,  what  are  crimes  punishable  in,  330  n. 
States,  statute  of  limitations  between,  164  n. 

of  United  States,  relation  of,  towards  one  another,  174  n. 
STATUTE,  what  is  a,  1  n. 

constitutionality,  how  far  an  element  of  definition,  1  n. 
what  deemed  to  be,  421  n  (42  n.) 

controlling  as  to  form  of,  361. 
all  parts  of,  to  be  compared,  35. 
embodying  distinct  acts,  construction  of,  42. 
territorial  extent  of  operaticm  of,  169. 
when  construed  as  continuation  of  former,  203  and  note, 
in  force  frotu  connection  witli  other  state  or  nation,  204. 
waiver  of  benefit  of,  444-447. 
estopped  from  claimi-ng  benefit  of,  448. 
speaks  as  of  lime  of  taking  eliect,  489  and  note, 
presumed  to  be  passed  with  referer.ce  to  rules  of  construction,  8. 
analogies  and  difierence  between  construction  of,  and  construction 

of  constitution,  506-540. 
violating  constitution,  180,  538. 
See  Acts,  Bills,  Context,  Enactments,  Misdescription,  Ordi- 
nances, Rules,  Streets. 
Statute  law,  what  is,  1  and  U'te. 

judicial  decisions  part  of,  367. 
STATUTE  OF  LIMITATIO.NS,  acknowledgment  to  take  debt  out  of,  52. 

state  may  plead,  161  n. 
municMpal  cor{)oraliun  may  plead,  165. 
in  suit  upon  bail  boiul,  164. 

official  bond,  167. 
as  to  prosecutions,  cliange  of,  279. 
construction  of,  296. 


858  INDEX. 

[The  relerence  is  to  sections.] 

STATUTE  OF  LIMITATIONS  (conUnued). 

between  states,  164  n. 
as  to  real  estate,  see  Tithes. 
See  Joint  Debtor,  Limitations,  Married  Women. 
Statutory  remeily,  when  exclusive,  i'SS  n.,  434.     See  Remedy. 

proreediiig-',  see  New  Proceedings. 
Stay  of  execution,  con-trnction  of  act  giving,  to  freeholder,  102. 

laws,  strict  construction  of,  350. 
iSleal,  75. 

Sieainboat,  see  Engineer,  Letter. 
Still  or  xlills,  25).  S-e  Distillery. 
iStnck,  Ion.     See  Pledgee,  Stockholder. 

STOCK,  act  f(n-bi(liliug  lioliler  lo  iransler  until  payment  of  calls  due,  137. 
e(]uitable  restriction  of  act  relating  to  iransfer  of,  324. 
transfer  of,  not  entered  on  books,  324  n.,  438. 
divi. lends,  418  n.,  608. 
gambling,  138.     See  MARGIN,  Wager. 
STOCKHOLDERS,  acts  made  especially  for  protection  of,  137. 
personal  liability  of,  96. 

acts  subjecting,  to,  strictly  construed,  350. 
consiittuional  provision  as  to,  508. 
methods  of  enforcing,  466. 
See  Shares. 
Stock  jobbing,  335. 

Stolen  goods,  see  Ri';cEiviNG,  Restoration. 
Stolen  or  taken  by  robbers,  61. 
Stoi'e  account,  76  ;i. 

Stranger,  incompetent  to  object  to  certain  matters,  137.    See  Third  Parties. 
Stream,  378. 

Stream,  partial  appropriations  of,  353  n. 
Street,  lane  or  place,  410. 

or  road,  378. 
STREET  cars,  see  Omnibusses. 

crossing,  see  Road  CYossing. 

Railway  Co.,  authority  to  declare  dividend  at  such  times  as  they 
may  deetn  expedient,  142. 
ordinance  limiting  fare  on,  to  five  cents,  215  n. 
See  Classification. 
STREETS  (see  Highway,  Roaos),  act  providing  method  for  opening,  22. 
power  to  innni«ipalily  lo  open,  concurrent  with  conns,  151. 
construction  of  act  relating  to  opening  of,  damages,  *ic.,  12G,  407. 
etlecl  of  re.neal  of  act  authorizing  opening  of,  480. 
act  relating  lo  laying  out,  507  n. 
owner  of  fee  of,  not  occupier,  95. 

effect  of  act  vesting,  in  local  authority,  120,  372.     See  MINERALS, 
niisdesuription  of,  ni  staiute,  122. 
jurisdi(;liou   over,  not  supposed  to  be  vested   in  two  conflicting 

bodies,  200. 
location  of,  through  graveyard,  225. 
right  to  lay  pi[)es  in,  snhjert  to  change  of  grade,  251. 
vacation  of,  iiu;luded  by  iiiiprovenieiit,  3">8  u. 
what  implied  in  power  to  c  >ntract  f)r  lighting,  418. 

involved  in  right  to  dig  up,  421. 
laving  |)ipeline  under,  damages  for,  519  n. 
STRICT  cona'truction,  329-356. 

what  is.  127,  329,  3.34. 
basis  of  rule  nl,  329. 

as  result  of  })resUMiption  agalnct  intent,  16S. 
forbidden  where  it  would  render  act  unconstitutional^ 
178. 


INDEX. 


859 


[The  reference  is  to  sections.] 
STRICT  (continved).  .  .,„„ 

construction  requirerl  where  liberal  construction  would  do  so,  17y. 
rule  of  ejasdcm  generis  especially  applicable  to  acts  re- 
quiting, 405. 
principle  of,  has  lost  much  of  its  force,  329. 

nut  abrogated  by  act  requiring  literal  con- 
siruciion,  329  n. 
meaning  of  rule  of,  329. 
diflference  between  liberal  and,  329. 
results  and  ellects  of  rule  of,  330,  o39. 
degree  of  strictness  to  be  applied  in,  334. 
exclusion  of  new  things  by,  33o. 
treatment  of  omissions  in   acts  under,  336. 
qualifications  of  rale  of,  ^'•37-339. 
miideiii  tendency  as  to,  339. 
of  penal  statutes,  329-3:^9. 

acts  encroacliiug  on  rights,  340-343. 

disqualifying  citizens  from  giving  evidence,  341. 

fiom  making  contracts,  341. 
requiring  suitor's  lest,  oath,  341. 
forbidding  public  officers  to  purchase,  341. 
avoiding  deed,  341. 
imposing  disabilities,  341  and  note, 
regulating  trade,  342. 
restraining  alienation  of  property,  342. 
prescribing  manner  of  using  and  holding  prop- 
erty, 342. 
forbidding  preference",  342. 

bequests,  312. 
of  limitations,  343.  _ 

subjecting  propeity  of  one  to  seizure  for  liabil- 
ity of  other,  343. 
discharging  surety,  343. 
allowing  taking  of  private  property,  343. 
requiring  affidavits  of  defence,  &c ,  344. 
giving  summary  proceedings,  344. 
dispensing  with  notice  or  allowing  constructive 

notice,  262. 
authorizing  attachments,  344. 

court  to  mark  judgment  satisfied, 

344. 
landlord's  warrant,  &c.,  344. 
requiring  gratuitous  services  from  citizen,  345. 
imposing  burdens,  345-346. 
allowing  costs,  347. 

regulating  form  and  execution  of  contracts,  348. 
creating  monopolie.s,  349. 
in  restraint  of  irade.  349. 
giving  mechanics,  &c.,  liens,  350. 
creating  exceptions  from  recognized  liabilities,. 

350 
permitting  limited  partnerships,  &c.,  350. 
giving  inferior  jiirisdiclions,  152. 

new  remedies,  351. 
creating  new  or  special  jurisdictions,  351. 
authorizing  courts  to  make  rules,  351. 
delegating  powers,  352-353. 
investing  private  persons  with  privileges,  354- 

355. 
creating  corporations,  354-355. 


860  INDEX. 

[The  reference  is  to  sections.] 
STRICT  {continued). 

coustruclion  of  acts  granting  powers  to  corporations,  354. 

j)iiljiic  bodies,  less  so,  355. 
conferring  exemptions  from  common  burdens, 
356. 
act  exempting  from  taxation,  356. 

in  derogation  of  prior  or  common  law,  127  and 

note,  128. 
allowing  suits  against  government,  168. 
local  law,  350. 

class  legislation,  350.  I 

proviso,  exception  and  saving  clause,  186,  526.  \ 
Interpretation  clause,  365  7i.  ) 

conslitutiDii,  526.  -^ 

how  fur  appiical)le  to  revenue  laws,  3^6. 
when  inapplicable  to  act  prescribing  less  rate  of  taxa- 
tion, 356. 
grammatical  and  etymological  sense  not  always  followed,  73. 
Slrv/:ture,  73  and  note. 
Style  of  enactments,  536. 
Sultcontractor,  not  a  contractor,  122. 

SUBJECT  MATTEJi  (see  Revision,  Implied  Repeal),  language  construed 
in  harmony  with,  73. 
general  words  restricted  by  reference  to,  86-101. 
and  object,  restriction  of  language  lo  special,  of  act  to 
avoid  repeal,  210-214. 
construction  ofconsiitutional  provisions  with 
reference  to,  518-519. 
Submission  of  township  organization  to  vote  of  electors,  23. 
Subscribed,  96  n.,  349  and  note. 
Substance  of  transaction,  courts  look  at,  138. 

enactment,  things  not  of  the,  436. 
Substitute,  repeal  of  detached  specific  provisions  by  general  act,  intended  to 
be,  230. 

See  Code,  Exclusive  Rule,  Revision. 
Subterfuges,  see  Evasion. 

Succession  of  judges  under  Pennsylvania  constitution,  513  n.,  514. 
Successor,  when  not  included  in  power  to  predecessor  in  office,  18. 
Such,  302,  507  n. 
bond,  381. 

order  .  .  .  as  .  .  .  should  seem  meet,  148. 
persons,  253. 
Suffer,  129,  337,  378, 

any  washings  to  be  conveyed  or  to  flow,  133. 
Sugar-cane  seed,  103. 
Suit,  compluint  or  plea,  507  n. 

or  proceedings  at  law,  77  n. 
Suitor's  test  oath,  acts  requiring,  341. 
Suits  of  a  civil  nature  at  common  law  or  in  equity,  159. 

rights,  actions,  prosfculions,  recognizances,  judgments  or  claims,  526. 
SUMMARY  jurisdiction,  presumption  against  creating,  158. 
proceedings,  strictness  oliservabie  in,  158. 
notice  required  in,  202. 
acts  giving,  without  notice,  262. 
ptricL  construction  of  acts  giving,  2G2,  344. 
relief  by  judge  at  chaniber.s,  act  for,  reirospective,  258. 
SUMMONS,  continuance  and  renewal  of.  unlawful,  10. 

on  absent  persons,  12.     S^e  Absenuk,  Non-KESIDENTS. 
long  and  short.  213. 
requisites  of,  imperative,  435, 


INDEX.  861 

[The  reference  is  to  sections. 1 
SUMMONS  (coniinued).^ 

waiver  of  irregularities  in,  445. 
may  be  dispensed  witii,  445. 
what  appearance,  &q.,  is  waiver  of,  445. 
of  jurors,  see  Jurors. 
on  Sunday,  see  Sunday. 
Sumx  to  be  paid  by  curators  of  vacant  successions,  101. 
SUNDAY,  law  forbidding  sale  of  liquors  on,  when  repealed,  14. 
act  authorizing  holding  of  election  excludes,  114. 
only  one  recovery  for  several  breaches  of  same,  255. 
act  relating  to  contracts  made  on,  287. 
contracts  made  on,  269  and  note. 

in  otiier  stale,  169. 
by-law  closing  navigation  on,  352. 
service  of  writ  on,  illegality  of,  not  to  be  waived,  446. 
when  included  in  or  e.xcluded  from  computation  of  time,  393, 534 n. 
Superfluous,  no  word  to  be  held,  23,  (386),  413. 

See  Kedundant,  Surplusage. 
Superior,  rule  that  inferior  not  to  be  held  to  include,  412-413. 

courts,  act  afi'ecting  jurisdiction  of,  151.     See  Supreme  Court. 

when   not    deprived  of  control  and  supervision  of  inferior, 
152.    See  Certiorari. 
Supei'sede,  75. 

Supervisors  of  road  included  by  officers,  410.    See  Township  Supervisors. 
Supplement,  527. 

Supplement  construed  to  harmonize  with  original  act,  40. 
Support,  see  Maintenance,  Party-wall. 
Sm>press,  334. 

Suppression  of  nuisances,  act  for,  334. 

Supreme  Court,  presumption  against  ouster  of  jurisdiction  of,  by  statute  and 
constitution,  151,  522. 
of  United  Stales,  right  of  justices  of,  to  sit  as  circuit  judges, 
527. 
See  Certiorari. 
SUKETY,  construction  of  act  entitling,  to  assignment  of  securities,  280. 
discliarging,  upon  notice,  &c.  343. 
statutory  requirement  of  signature  of  lease  by,  waiver  of,  444. 
See  Bail,  Bond,  Married  Women,  Mortgage,  Principal. 
SURPLUSAGE,  nothing  to  be  treated  as,  23.     See  Kedundant,    Supee- 

FLUOUS. 

words  rejected  as,  301-302. 
in  constitution,  507  n. 
Surrender  of  public  rights,  161,  356. 
Surrogate,  power  to  issue  attachment,  419  n.     See  Bond. 
Suspetuiing  and  repealing  act  passed  at  same  session,  40  n, 
SUSPENSION,  194.     See  Context,  Proviso. 

to  escape  implied  repeal,  215  and  note, 
of  repealing  act,  475,  476. 

act  ?U[)erseding  common  law,  475. 
laws,  war  is  not  a,  494. 
Swear,  388. 
Swine,  249. 
Swing-bridge,  see  Draw-bridge. 

Take,  337. 
Taking,  518. 

or  Jestroifing,  402. 
Tavern,  see  Innkeeper,  Publican. 

Taxation  of  property,  of  a  county  is  not,  of  the  poor  district,  14. 
to  pay  burden  properly  belonging  to  former  year,  65. 


862  INDEX. 

[The  reference  is  to  sections.] 
TAXATION  {continued). 

of  property  includes  credits,  Von.    See  Property. 

terms   nseil  in  statute  imposing,  understood  in  ordinary  sense, 

80,  83. 
upon  fjround-rents,  not  taxation  of  widow's  interest  in  land,  &c., 

80. 
person  in  acts  imposing,  when  not  including  corporation,  88. 
upon  coal  companies,  construction  of  act  imposing,  139. 
U[)on  dividends,  construction,  &c.,  142. 
dis(;retion  in  imposing,  does  not  justify  unequal,  148. 
exemption  of  public  property  from,  163  and  note, 
power  of,  limited  to  pt-rsons  and  property  in  state,  169. 
legislature  cannot  siirreiider  power  of,  173  (Addenda). 
limitation  upon,  when  impliedly  repealed,  199. 
local  act  exempting  from,  not  repealed  by  general  act  imposing, 

224. 
special  laws  concerning,  not  repealed  by  general,  228. 
retroactive,  260  and  note, 
presumption  against  double,  260  n. 
act  abolishing,  prospective,  278. 

authorizing,  according  to  previous  assessment,  280. 
prescribing  less  rate  in  certain  c;ises  liberally  construed,  356. 
exemption  from,  strictly  construed,  356. 
what  is  suliject  to,  as  land,  406. 
of  trades,  dic ,  407. 
power  to  impose  additional,  417  w. 

for  municipal  objects,  when  farming  lands  subject  to,  420. 
of  personal    property,  see  Collateral  Inheritance  Tax, 

Foreign-held  Bonds,  Personal  Property. 
what  !>•  property  for  purpose  of,  620. 
proportional,  536. 
uniformity  of,  540. 
See  Collateral    Inheritance   Tax,    Corporations,    Exemp- 
tion, Municipalities,  Occupier,  Real  Estate,  Public 
Property. 
TAX  collector  (see  Bond),  suit  on  bond  of,  for  balance  shown  by  account, 
155  n. 
deeds  void  on  face,  act  authorizing  conveyance  of  land  does  not  vali- 
date, 115. 
act  relating  to  lands  held  under,  means  valid,  385. 
list,  provisions  as  to  deposit  of,  4M5,  436  n. 

signing  of,  437. 
payers,  see  Penalties. 

rate,  validity  of,  not  inquired  into  by  justices  authorized  to  issue  dis- 
tress warrant,  246. 
roll,  construction  of  act  legalizing,  292. 
sales,  act  relating  to  invalid,  419  n. 
lime  of,  436. 

acts  relating  to  expense  of  publishing  notices  of,  214. 
construction  of  two  acts  relating  to,  216. 
declared  void,  270. 
act  validating.  293. 
See  Notice,  Redemption. 
Taxed  cart,  365. 

TAXES  imposed  on  county,  not  imposed  on  poor  district  co-extensive  with 
county,  14. 
liability  of  outgoing  occupier  for,  62. 
when  not  to  be  piid  by  third  party,  143. 
payment  of,  as  qiialitii;ati()n  to  vote,  143. 
implied  repeal  between  acts  relating  to,  200. 


INDEX.  863 

[The  refterence  is  to  sections.] 
TAXES  (continued). 

no  implied  repeal  between  acts  providing  remedy  for  illegal,  and 

regulating  nietliod  for  assessment,  214. 
local  act  requiring  collectors  to  pay  over,  225. 
nature,  &c.,  of  penalty  to  enforce  payment  of,  281  n.,  331  and  note, 

483.    See  Percentage. 
act  kept  in  force  for  collection  of,  held  in  force  for  redemption,  327. 
imposing,  not  extended  by  implicntion,  345. 
strict  construction  of,  345. 

reasonable  construction  of,  346.     See  Revenue  Laws. 
making  payment  of,  condition  of  voting,  385. 
covenant  in  lease  to  pay,  460. 

levied  under  act  may  be  collected  after  repeal,  but  not  penalty,  ^83. 
act  for  collection  of,  507  n. 
See  Adverse  Possession,  Assessment,  Burdens,   Judgments,  Pen- 
alties, Percentage,   Sale,   Stbict   Constkuction,  Town- 
ship Kates. 
Taxing  act  held  prospective,  271. 
Team,  103,  350. 

TECHiSiCAL  legal  terms,  understood  in  common  law  sense,  127. 
meaning,  74-75.    See  Grammatical. 

acquired  in  our  jurisprudence,  different  from  Eng- 

lisi),  507  71. 
when  given  to  words,  2. 

rejected,  76. 
overcome  by  practice  under  act,  357. 
of  terms  used  in  constitution,  507. 
Telegraph  companies,  321. 

liability  of,  for  failure  to  send  messages,  471  n. 
TEMPORARY  act,  effect  of  continuation  of,  on  infringements,  489. 
public  act,  502. 

location,  see  RAILROAD  Company. 
Tenant  so  plnnling,  lOo,  IQi. 
Tenant  for  life  with  power  of  appointment  is  person  seized  in  fee  simple,  &c.,  77. 

of  premises  is  occupier,  though  absent,  95. 
Tender,  when  equivalent  to  actual  payment,  442. 
Tenement,  406. 

2'enements  and  hereditaments,  406. 
Term,  3,  299  n.,  508. 
Term  of  years,  see  Real  Estate. 
Terms  of  record,  371  n. 

Terms,  see  Commekcial  EXPRESSIONS,  LANGUAGE,  Phraseology,  Tech- 
nical Words. 
Territorial,  see  Extra-territorial. 
Territory,  jncluded  in  stale,  78. 

of  state  includes  its  ships  and  waters,  169, 174. 
Testator,  see  Incompetency,  Wills. 
Test  ballot.  335  n.,  333 
oath,  see  SuiToRS. 
Theatres,  see  Plays. 

The  first  and  second  sections  of  this  act.  304. 
'      said  offence,  253. 
same  as,  493. 
several,  477. 
Their  railroad,  354. 

THIRD  PARTIES  (see  Stranger),  rights  of,  unaffected  by  act  directing 
sale  of  a  person's  property  by  surveyor-general,  122. 
payment  of  taxes  by,  not  compliance  with  act,  143. 
This  act,  42. 
Three-mile  zone,  373. 
I'hree  weeks  before,  389. 


864  INDEX. 

[The  reference  is  to  eections.] 

Threshing  machine,  contract  in  violation  of  act  requiring  covering  of  parts  of, 

4ol. 
TICKET,  effect  of  taking,  with  express  condition  that  no  luggage  be  carried, 
444. 
a  valuable  security,  338. 
for  beer,  139. 
Tidal  river,  see  FisiilNQ. 

Timber,  see  Co-tenant,  Punitive  Damages,  Eminent  Domain,  Trees. 
Time  appointed  (set)  for  trial,  369. 
TIME,  computation  of,  390-394,  534. 

act  relating  to,  prospective,  271. 
effect  of  omission  of  statute  to  fix,  20  and  note.     See  Keasonablb 

Time. 
when  a  riglit  given  is  to  be  exercised,  398  71. 
acts  take  eH'ect.  see  Commencement. 
repeal  takes  effect,  4x9. 
directory,  43t),  437,  438,  536. 
imperative,  431,  443,  468  (398  n.) 
and  place  of  prosecution  and  trial,  see  New  Offence. 
Tithes,  cousirucliou  of  act  of  limitations,  as  to,  211.     See  Lands. 

relating  to  exemption    from  (3  &  4  Wm,  IV.,  c. 
.      _  100),  65. 

TITLE,  act  exempting  homestead  to  debtor  decides  nothing  as  to  his,  120. 
to  quiet,  construed,  205  n. 
construction  of  act  of  Congress,  22(1  July,  1866,  confirming,  116. 
defects  of,  not  cured  by  act  declaring  every  conveyance  valid,  115. 
only  purchaser  of  same,  protected  by  recording  acts,  117. 
when,  passes  by  conveyance  declared  void  by  statute,  118. 
implied  repeal  of  act  forbidding  justices  to  take  cognizance  of  cases 

involving,  199. 
when  no  part  of  act,  58  and  note, 
part  of  act,  58  n.,  59. 
an  aid  in  construction,  58-59,  295  ». 
referred  to  in  body  of  act,  59. 
under  constitutional  requirement  as  to  contents,  <^c.,  59. 
cannot  control,  limit  or  extend  clear  meaning  of  siatuie,  59. 

(appirent  exception,  under  constitutional  provisions,  ibid.) 
constituiional    provisions   as   to,  527,  636.      See   IMPLIED   Amend- 
ment, Implied  Kepeal. 
of  articles,  &a.,  in  constitution,  512.     See  Headings. 
To  all  intents  and  purposes,  403. 
Tobacco,  iial)i!iiy  for  having  adulterated,  132  71. 

dealer  in,   omission   of,   to   paint  name   over   entrance,   457.     See 
License 
Toll-bridge,  acts  auiborizing,  349.     See  Repair.  * 

TOLLS,  construction  of  act  as  to  letting  of,  2'2b. 

certain  acta  relating  to  payment  of,  217. 
act  relating  to,  301. 

permitting  charging  of,  349. 
what  involved  in  right  to  take,  424. 

company  autiiorized  to  levy,  within  specified  maximum,  need  not 
exact  uniform,  444. 
Ton,  362. 

Tools,  act  exempting,  from  execution,  261. 
Ions,  trexpasses  and  other  injuries,  405  ti.     See  HtJSBAND. 
2b  the  prejudice  of  the  purchaser,  337. 
lestfy,  419  71. 
wit,  400. 
Town,  32 1  71. 
Towns,  when  included  by  cities,  37. 


INDEX.  865 

[The  reference  is  to  sections  1 
Township,  518. 

meelings  to  be  held  in  said  county,  23. 
TOWNSHIP  authorities,  no  right  to  settle  with  railroad  company  for  taking 
public  road,  J 00. 
organization,  see  Submission. 
rates,  eflect  upon  contracts  of  townships  of  failure  of  supervisors 

to  give  taxpayers  opportunity  to  work  out,  2t)8. 
supervisors,  remedy  against,  for  neglect  of  statutory  duties,  467. 
Towpath,  see  Notice,  Repair,  Tolls. 
Trade,  350  {Addenda). 
Trade,  strict  construction  of  acts  in  restraint  of,  349. 

regulating,  342. 
Trader,  378.    See  Married  Women. 
Train  of  cars  not  a  structure,  73. 

TRANSCRIBED  act,  fluctuation  in  construction  of,  371. 
adoption  of  construction  of,  371. 

before  amendment,  371. 
constitutional  provision,  530. 
Transcript  of  judgment,  when  execution  cannot  be  issued  on,  14  n. 
Transfer,  365. 

Transfer  of  judgments,  effect  of  act  allowing,  14.     See  Annulment,  Assign- 
ment, Stock. 
Transferee  of  stock  as  collateral  security,  see  Owner,  Pledgee. 
Transportation  company,  350  [Addenda),  404. 

TRANSPOSITION  oY  clauses  in  statutes,  13,  318  and  note.    See  Collocation. 

constitution,  507  n. 
proviso,  318. 
words,  318  and  note. 
Traveling  agent,  sales  bv,  174  n. 
Treason,  169  n.,  335,  494. 
Treasurer,  see  Attachment. 
Treasury,  see  Departmental  Usage. 
TREATIES,  presumption  against  intent  to  violate,  175. 

duty  of  court  as  to  clear  violation  of,  by  enactment,  175. 
not  to  he  violated  by  constitution  of  state,  523. 
Treble  damages  (see  Punitive  Damages),  construction  of  act  giving,  129. 
Trees,  cutting  of,  in  assertion  of  right,  131.     See  Co-tenant. 

when  not  products  or  vegetable  productions,  406. 
Trespass — trespassers,  320. 

TRESPASS,  when,  lies  against  railroad  company  taking  land,  154  n. 
by  entering  or  being,  382. 
by  persons  firing  from  highway,  3.37. 

sheriff  in  oflicial  capacity,  when  misdemeanor,  79. 
committed  under  mistake,  129. 

in  assertion  of  right,  131. 
certificate  of  judge  for  costs  in,  247  (Addenda). 
Trespasser,  when  corporation  taking  land  under  right  of  eminent  domain  is,, 

154  ri. 
Trial  and  determination,  381  n. 
Trial,  by  battle  and  grand  assize,  494. 

public,  see  Accused.  . 

Tricycles,  335. 
2Vue,  441  n. 
IVust  arising  under  deeds,  wills,  or  in  the  settlement  of  estates,  122. 

fund,  90. 
TRUST,  construction  of  act  declaring  that  a,  shall  be  deemed  discharged  after 

twenty-five  years,  178. 
requiring  registration  of  bill  of  sale  subject  to,  137. 
debt  arising  from,  within  statute  limiting  lien  of  debts,  17. 
unattested  paper  not  creating  a  binding,  not  within  statute  of  mort- 
main, 144. 

55 


866  INDKX. 

[The  reference  is  to  sections.] 

TRUSTEES,  when  owneis,  96. 

construclion  of  act  validaung  sales  by,  3S5. 
of  absentees'  estates,  efll-cl  of  appointment  of,  120. 
See  Corporations,  Validating. 
Trusts,  122. 

Tiukevs,  see  Dead  Animal. 
T'urii  caille  loose,  SIS. 
TURNPIKE  company,  act  authorizing,  to  abandon  portion  of  road,  122. 

construction    of   act   as    to   erection    of   gate   within 

limits  of  town,  85. 
special  act  as  to,  repealed  by  general,  230. 
construction  of  act  relating  to,  2U6. 
implied  ie[)t'al  between  acts  relating  to,  205. 
road  is  public  road,  75. 

remains  i)ublic  road  upon  forfeiture  of  charter,  75  7i. 
See  Obstruction,  Tolls. 
Two,  302. 

or  more,  358. 

Ubi  ducB  conlrarioe  leges  simt,^  semper  anllquce  obrogat  nova,  182. 
Ultra  vires,  acts  of  corporations,  354. 
Unadulterated,  401. 
Uncertainty,  causes  of,  26  n. 

UNCONSTITUTIONAL  act  (see  Constitutionality),  statute  attempting  to 

validate  ads  done  under,  521  {Addeiida). 
repeal  by,  192  and  note, 
amendment,  effect  of,  195. 
decision  of  foreign  court  declaring  act,  not  binding 

in  constrnciion  of  transcribed  act,  371. 
proviso,  effectt  of,  in  interpretation,  35  n.,  50  n. 
statutes,  180,  538. 
when  onlv,  act  can  be  declared,  524. 
UNCONSTITUTIONALITY  '(see  Ordinances),  when  not  to  be  inquired 

into  by  olhcers  charged  with  acting  under 
statute,  136  (,246). 
partial,  538. 
Under,  297. 

the  restrictions  and  limitations  herein  provided,  294. 
Undertakers,  241. 
Unencumbered  real  estate,  102. 
Unexjjressed  intention,  417  el  seq.,  509. 
Uniformity  of  taxation,  540.     See  Tolls. 
Unintentional  omission,  see  Omission. 
UNITED  STATES  cuurt.s,  159. 

act  prohibiting  purchasing  of  land  on  account  of,  145. 
not  a  person  under  statute  of  wills,   167. 

bound  bv  state  statute  of  limitations,  161  n. 
See  Constitution,  "District  Court,  Fedkral  Courts,  Gov- 
ernment. 
Unlawful,  119. 

or  forcible  entry,  381. 
Unlawfully  and  willfully,  119,  131. 

taking  a  girl  under  sixteen  years,  &c.,  131. 
Unless,  431. 

otherwise  provided,  513  w. 
he  shall  prove  at  the  trial,  282. 
when  othericise  provided,  219. 
Unmarried  man,  when  housi-holder,  92. 

Unreason  (see  1?y-La\vs.  Oruin'ancks),  presumption  against,  245-250,  2o8  w. 
Unreported  judicial  dfci.^iuns,  .'iu8. 


INDEX.  867 

[The  reference  is  to  sections.] 

Unsafe  and  iinproper  carriage,  132. 
Unseaworthiness,  liability  I'rom,  35. 
UniU,  431. 

its  works  ar6  completed  and  liable  to  assessment,  299. 
such  person  can  be  removed,  299. 
Unusual  meaning  given  to  particular  words  to  accomplish  intent,  295. 
Upliohl,  duty  of  court  to,  the  various  acts  and  parts  of  acts,  182,  210,  524. 
Upon  .  .  .  ,  318. 

USAGE,  34,  357-364.    See  Contemporaneous,  Customs,  Departmental, 
Professional. 
age  of,  359. 

at  variance  wiih  plain  meaning  of  statute,  361. 
character  of,  to  amount  to  contemporaneous  construction,  361. 
may  control  common  law,  361. 
particular,  362. 

in  construction  of  constitution,  527-528. 
Usages  among  merchants,  362  ?i. 
Use,  337,  338. 

Use  and  reason  of  former  law,  construction  should  be  as  near,  as  possible,  113. 
Used,  334. 

for  cordage,  384. 

in  navigating  the  waters  of  the  state,  262  n. 
Uses  and  trusts,  122. 

USUKY,  construction  of  laws  concerning,  to  avoid  evasion,  138. 
two  acts  relating  to,  217. 
and  equitable  restriction  of  laws,  324. 
notice  of,  117. 

mere  error  in  calculation  is  not,  119. 
who  may  take  advantage  of,  137. 
estoppel  against  asserting  defence  of,  448. 
effect  of  repeal  of  act  on  defence  of,  483  n. 
See  Indorsee,  Purchase-money  Mortgage. 
Uti  loquitur  vnlgus.  76. 
Utterly  frustrate,  void,  and  of  none  effect,  to  all  intents  and  purposes,  269. 

void  and  of  none  effect,  449. 
Uxoricide,  see  Husband-murder. 

Vacancy,  when  court,  in  election  contest,  may  declare,  419  n. 

constitutional  provision  as  to  power  of  executive  to  fill,  514. 
Vagabond,  73. 
Valid,  115. 

VALIDATING  STATUTE  (see  Curative)  as  to  deeds  acknowledged  in 

another  state,  110. 
as  to  conveyances,  115. 

sales  made  in  fiduciary  capncity,  115. 
confined  to  acts  within  jurisdiction,  385. 
attempting  to  legalize  acts  done  under  uncon- 
stitutional stMtute,  521  (^rfc^enrfa). 
Validity  of  statutss,  see  Constitutionality,  Unconstitutional. 

tax  rate   collateral  inquiry  into,  246. 
Valuable  security,  338  and  note. 
Valuation  lisi,  see  Tax  List. 
Value,  367. 

of  the  ship,  350. 

and  her  appurtenances,  350. 
Variations  of  language,  see  Change. 
Vault,  see  Burying- vault. 
Vehicle,  who  is  owner  of,  96. 
Vendor's  lieu,  see  Lien. 


868  INDEX. 

[The  reference  is  to  sections.] 

Venue,  acts  relating  to  change  of,  2S8,  314. 
origin  of  rule  as  to  ciiange  of,  327. 
See  Change,  Permissive  Words. 
Verba  cartctrum  fortius  accipiuntur  contra  proferentem,  354. 

relata  inesse  videntur,  184  n. 
Verdict,  amendment  of  declaration  after,  108  7i. 
Vessel,  13.     See  Damage,  Injury,  Ship. 
Vessels  used  in  naviyatiny  the  waters  of  the  stale,  262  n. 
Vest,  120. 

VESTED  RIGHTS,  acts  affecting,  273-276,  283,  284. 
none,  in  defects  of  tiie  law,  285. 

right  to  sell  liquor,  150  (Addenda). 
See  Inchoate  Rights,    Municipal   Corporations,  Retro- 
action. 
Vestrymen,  115. 
Victualing  stores,  destroying  the  queen's,  494. 

houses,  implied  repeal   between  acts  for  regulation  of,  216  (Ad- 
denda). 
Viewers,  construction  of  act  permitting  court  in  certain  cases  to  appoint,  160. 

See  Road  Law. 
Violation,  see  Charter,  Constitution,  Contract,  Duty,  International 

Law,  Natural  Law. 
Vitiated  or  adulterated,  248. 
Void — voidable,  269,  270. 
Void,  48,  444  n.,  450. 

and  of  none  effect,  118,  269. 
to  all  intents,  36. 

and  purposes,  378. 

qnd  not  available  .  .  .  for  any  purpose,  209. 
VOID  and  illegal,  distinction  between,  449. 
what  is  absolutely,  270. 

relatively,  270  n. 
effect  of  being,  270. 
contracts,  see  CJontracts. 

portion  of  act  not  disregarded  in  construction,  50  n. 
proceedings  treated  as  voidable  for  purpose  of  certiorari,  152  n. 
Volenti  non  jit  injuria,  473. 
Voluntary,  403. 

Voluntary  conveyances,  act  invalidating,  296. 
Vote,  casting,  13. 

assessment  and  payment  of  tax,  as  qualification  for  right  to,  143,  335. 
Voter,  notice  of  objection  to,  105. 
Voters,  388  n.    See  Registry  List. 

VOTING  (see  Cumulative)  for  ineligible  candidate,  114  and  Addenda. 
illegal,  3:^4. 

payment  of  tax  as  condition  of,  385. 
prerequisites  to,  432. 

residence  and  other  constitutional  qualifications  for,  514,  519. 
papers,  see  Election  Officers. 

married  women  debarred  from  right  of,  though /e»ui/es  permitted  to 
vote,  115. 

WAGER,  construction  of  act  declaring  null  and  void,  137  n. 

acts  proliibiting,  to  avoid  evasion,  138. 
relating  to,  as  prospective,  274. 
on  primary  election,  335,  340  n. 
outside  of  slate,  138. 
See  Stock  Jobbing. 
Wager-policy,  138. 
Wages,  527,  531. 


INDEX.  869 

[The  reference  is  to  sections.] 

Wages,  acts  preferring,  350.     See  Labor  Claims. 

forbidding  attachment    of,   go    to   jurisdiction    and    cannot    be 
waived,  447. 
Wagon,  103.     See  Vehicle. 
WAIVER,  none  by  prisoner,  446. 

of  statutory  provisions,  444-447.     See  Wages. 
provisions  capable  of,  to  be  invoked  only  by  party  within  gist,  444  n. 
of  summons  and  defects  in  summons,  445. 
what  is  not,  of  time  allowed  for  filing  affidavit  of  defence,  46. 
of  constitutional  provisions,  537. 
War,  not  a  suspension  of  ntatute,  494.     See  Secretary. 
Warehouseman,  wharfinger,  or  other  person,  406. 
Warehousemen,  act  relating  to  receipts  by,  446. 
Warrant  of  attorney  or  judgment  note,  400  n. 

WARRANTS  of  attorney  for  confession  of  judgment,  executed  in  one  state 

for  use  in  other,  115. 
construction  of  act  de- 
claring, void,  116. 
unsealed,  435. 
See  Distress  Wajieant,  Land  Warrant,  Landlord's  WiLB- 

RANT. 

WATER,  backing,  upon  land  of  another,  75. 
fouling  of,  133. 

grant  of  right  to  conduct,  over  another's  land,  79  (Addenda) 
company,  see  Stream. 
rates,  or  rents,  are  not  taxes,  73  n. 
works,  see  Public  Property. 
We  the  People,  511. 
Weapons,  see  Concealed. 
Week,  389.  _  '^ 

fractions  of,  389. 
Weights  and  measures,  acts  relating  to,  18,  336.     See  BuYEB,  SCALES. 
Wharf,  424. 

Whatever  else  may  seem  necessary  •.  .  .  in  the  premises,  411. 
When,  431. 

any  judgment  is  obtained,  272. 
otherwise  expressly  provided,  219. 
the  sum  adjudged  .  .  .  exceeds,  245. 
Whenever  required  to  do  so,  10. 
Wherever  found,  169  (Addenda). 
Which,  414,  532. 
Who  shall  come  in  the  state,  321. 
Wholesale  store  account,  76  n. 
Whole  subject,  see  Common  Law,  Revision. 
Whose.  414. 
Widow  and  family,  100. 
WIDOW  is  not  wife,  90  n. 

construction  of  acts  giving  exemption  to,  out  of  husband's  estate, 

_  100,  101,  388  n. 
action  by,  against  railroad  company  for  death  of  husband,  154  n. 
Wife,  40  n. 
WIFE  of  person  gone  to  sea,  12. 

when,  may  file  libel  in  divorce,  though  minor,  17. 
acknowledgment  by,  to  take  debt  out  of  statute  of  limitations,  106. 
act  giving  to,  the  earnings  of  her  labor,  gives  no  claim  for  work  done 
for  husband,  123. 
prohibiting  sale  by,  to  husband,  145. 
giving  damages  to,  for  sale  of  liquor  to  husband,  371  n. 
when  not  incluiied  by  person,  385. 
See  Dower,  Husband,  Married  Women,  Mortgage,  Widow. 


870  INDEX. 

[The  reference  ia  to  sectiona.] 

Will,  what  constitutes,  348. 
Willful,  119  and  note. 

default,  47. 
Willfully  destroying,  204. 
false  claim,  119. 

trespassing  and  refusing  to  quit,  134. 
WILLS,  altesuuion  of,  62. 

execution  of,  in  presence  of  two  witnesses,  20. 
signature  to,  52,  318. 

act  providing  that,  to  be  constracted  as  if  made  immediately  before 
death,  8U,  120. 
empowering  all  persons  to  devise  by,  115. 
not  in  contemplation  of  marriage,  120. 
nnattested  paper  accompanying,  144. 

person  in  statute  of,  does  not  include  state  or  United  States,  167. 
cumulative  metliods  of  contesting,  218. 
act  affecting  execution  of,  construed  |)rospe('tive,  274. 
presumed  to  be  made  witii  reference  to  existing  laws,  274. 
land  held  by  married   women   under,  taking  efiect   before  enabling 

act,  278. 
declaratory  rule  of  construction  held  retrospective,  284. 

prospective,  292. 
equitable   restriction  of  act  relating  to,  324. 
requirement  to  sign  at  the  end  thereof,  348. 
act  regulating  execution  of,  by  married  woman,  348. 
execution  of,  349. 
See  Bequests,  Married  Women,  Re-publication. 
Window,  selling  beer  ihrougli,  144. 

Wine,  act  forbidding  srde  of,  except  by  grower  on  his  own  premities,  97. 
Winegrower,  held  not  indictable  for  selling  without  license,  397  n. 
Wisdom  of  legislation  not  for  courts,  72. 
With  the  rank  of  colonel,  80. 

.same  horses  and  carriages,  304. 
Within,  392. 

eight  days  after  the  decision,  443. 

three  months  before  the  commencement  of  the  imprisonment,  296. 
Without  a  keeper,  51. 
license,  213. 
Witclicraft,  494. 

WITNES.SES,  when,  need  not  subscribe  will,  20. 
disinterested  and  credible,  20  n. 
incapacity  by  reason  of  felony,  240. 

strict  construction  of  act  disqualifying  citizens  from  being,  341. 
acts  relating  to  competency  of  |)arties  to  be,  77,  80, 126,  128,  374. 
requiring,  to  answer  self-criminating  questions,  380. 
twelve,  to  marriage,  437. 
attachment  to  bring  in,  419  n. 

constitutional  provision  tbat  accused  be  confronted  with,  520. 
as  to  qualifications  of  parties  as,  526. 
Wood,  act  relating  to  measurement  of,  441. 
Wooden  houses,  see  Building,  Ercciing. 
Wonl,  efTect  to  be  given  to  every,  23,  265,  413. 
WOKDri,  mu!tif)licity  of,  386,  531. 

in  different  parts  of  statutes  referred  to  their  appropriate  connec- 
tions, 416.     See  Reddendum,  etc. 
and  phrases  frequently  used  in  st;itutes,  some,  388-395. 
imp  iriing  masculine  gemler,  see  Masculine. 
of  inheritance,  see  Inheritance. 
See  AssociATior^,  Change,  Same;  (and  for  construction  of  particular  words, 
phrases  and  expression,  see  the  same  italicized  throughout  index.) 


INDEX.  871 

[The  reference  is  to  sections.l 
Workhouse,  73. 

Works  of  internal  improvement,  98. 
Wowid,  402. 
Wreck,  322. 
WRIT  of  attaint,  see  Juror. 

de  Iwnatico  inquirendo,  costs  upon,  108. 

of  error,  act  giving,  to  judgment  of  lower  court  on  quo  warranto,  125. 

in  criminal  trials,  125. 
when  inapplicable  to  pending  caubes,  290. 
when  inciilent  to  new  remedy,  154. 
See  Curative  Act,  Review. 
service  of,  see  Copy,  Sunday. 
Wrong,  presumption  against  intent  to  permit  advantage  from,  261,  267-270. 

literal  construction  allowing  advantage,  &c.,  11. 
Wrongful,  119  n. 

Year,  389. 
Years,  320. 
Yoke  of  oxen,  103. 


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